'^ 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITy 


G  000  083  711  2 


'I  iiiif'"^"'' 


miiiiiiiitiiii 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


-7/?  ^9, 


LOWELL    LECTURES. 


THE 


SCIENCE  OF  GOVERNMENT 


AS    EXHIBITED    IN    THE 


INSTITUTIONS  OF  THE  UNITED  STATES  OF  AMERICA. 


BY 

CHARLES    B.    GOODRICH. 


BOSTON: 
LITTLE,     BROWN    AND     COMPANY. 

1853. 


Entered  according  to  Act  of  Congress,  in  the  j'ear  1853,  by 

JOHN  AJIORY  LOWELL, 

Li  the  Clerk's  Oflice  of  tlio  District  Court  of  the  District  of  Massachusetts. 


C  A  Ar  B  R  I  D  G  K  : 

AI>LKN     AXI>     lARNIIAM,     PRINTERS, 

IlEMINGTON     STREET. 


T  O 


JOHN    A.    LOWELL. 

Having  had  an  opportunity  to  observe  the  fidelity 
and  soHcitude  with  which  you  discharge  the  trust  con- 
fided by  the  late  John  Lowell,  by  whose  munificence 
The  Lowell  Institute  has  been  established,  permit  me 
to  say,  his  intention  has  been  successfully  carried  into 
effect  by  your  care  and  attention.  Respectfully,  I 
acknowledge  my  obligation  for  the  kindness  and 
courtesy  which  you  have  extended  to  me. 

C.  B.  Goodrich. 

Boston,  July  27,  1853. 


o 

4Uh 


TO    THE    READER. 


The  following  lectures  were  read  before  the  Lowell 
Institute,  commencing  November  SOth,  1852,  ending 
January  7th,  1853.  The  contract  for  their  preparation 
was  made,  in  behalf  of  the  Institute,  by  Benjamin  E. 
Cotting,  during  a  temporary  absence  of  Mr.  Lowell. 
The  subject  and  its  mode  of  discussion,  were  adopted 
by  myself,  with  an  implied  understanding  that  mere 
party  politics  should  be  avoided,  except  so  far  as  an 
exposition  of  the  system  might  induce  to  their  consid- 
eration. In  any  and  every  discussion  of  the  system 
of  government  which  exists  in  the  United  States,  it 
should  be  borne  in  mind  that  it  is,  including  the  na- 
tional and  state  sovereignties,  limited  and  regulated  by 
written  constitutions.  The  people  may  amend  these 
instruments  without  resort  to  a  supposed  right  of  rev- 
olution. They,  by  themselves  or  authorized  agents,  ap- 
point the  persons  by  which  the  trusts  of  government 
are    executed ;   the    persons   so    selected,  with   few  ex- 


VI  TO     THE     READER. 

ceptions,  liolrl  office  for  certain  prescribed  terms  of 
time  ;  tluriiig  their  continuance  in  office,  they  cannot 
rightfully  transcend  the  written  constitutions  imder 
and  by  which,  in  general  terms,  their  duties  are  pre- 
scribed, however  fascinating  or  desirable  a  departure 
therefrom  may,  at  any  time,  be  regarded. 

The  security  of  the  American  citizens,  and  of  their 
free  institutions,  is  dependent  upon  a  constant,  firm, 
and  unwavering  adherence  to  this  fact;  whenever  and 
so  far  as  it  is  disregarded,  danger  more  or  less  exten- 
sive must  be  the  result. 

These  lectures  were  read  before  a  popular  audience, 
and  have  been  printed  by  the  Institute  upon  its  own 
suggestion.  The  writer  has  endeavored  to  avoid  dry 
legal  disquisitions,  so  far  as  the  subject  would  permit; 
and  has  deferred  to  the  opinions  of  others,  so  far  and 
so  far  only,  as  they  commended  themselves  by  then' 
reasons  to  his  judgment.  Political  economy  is  only 
another  term  for  jurisprudence.  Jurisprudence  is  the 
science  by  which  the  duties  of  man,  in  a  state  of  civil 
society,  are  ascertained  and  enforced. 

C.  B.  Goodrich. 


CONTENTS. 


LECTURE  I. 

The  Constitution,  departments,  and  pmi^ose  of  the  system,  state  and 
national,  which  constitutes  the  govei-nment  of  the  United  States,        Page  1 

LECTURE  IL 

The  external  right  and  duty  of  the  federal  government  as  sliown  in  its 
treaty-making  power.  —  Litervention.  —  Neutrality  the  jwlicy  of  the 
United  States.  —  Neutral  rights, 31 

LECTURE  ni. 

The  external  power  of  the  federal  government.  —  Ambassadors.  —  The 

war-making  power.  —  The  acquisition  of  territory,      .         .         .         .         G3 

LECTURE  IV. 

The  legislative  department  of  the  federal  government.  —  It  is  supreme, 
and  exclusive  of  state  legislation.  —  This  position  considered  as  applied 
to  taxes,  commerce,  natui'alization,  bankruptcies,  counterfeiting  the 
pubhc  securities,  .         .         .         .  101 

LECTURE  V. 

The  legislative  department  of  the  federal  government.  —  It  is  supreme, 
and  exclusive  of  state  legislation.  —  This  position  considered  as  applied 
to  post-offices  and  post-roads,  —  to  the  progress  of  science  and  useful 
arts, — ^to  offences  against  the  law  of  nations.  —  Restrictions  upon  the 
legislative  department,         .         .         .         .         .         ...         .         .       133 


VIU  CONTENTS. 


LECTURE  VI. 

The  state  government.  —  The  purpose  and  character  of  its  legislation. 

—  Within  certain  limits  it  is  supreme,  and  exclusive  of  federal  legisla- 
tion or  control, 1G3 

LECTURE  Vn. 

The  state  government.  —  The  purpose  and  character  of  its  legislation. 

—  Within  certain  limits  it  is  supreme,  and  exclusive  of  federal  control. 

—  Restrictions  imposed  thereupon, 191 

LECTURE  Vm. 
The  federal  and  state  judicial  departments, 219 

LECTURE  IX. 

Revenue.  —  Tariff".  —  Free  trade.  —  Public  lands.  —  Territorial  govern- 
ments.—  Admission  of  states.  —  Indian  tribes, 249 

LECTURE  X. 

The  relation  which  subsists  between  the  federal  government  and  the 
several  states.  —  Between  the  several  states  as  independent  sovereign- 
ties.—  Between  the  citizens  of  the  several  states,        ....       273 

LECTURE  XI. 

Revolution.  —  Amendment.  —  The  right  of  instruction.  —  Nullification. 

—  Secession.  —  State  rights,        .         .        • 299 

LECTURE  Xn. 

The  dangers  and  causes  of  danger  incident  to  the  system.  —  The  remedy  ' 

or  means  of  avoidance, 323 


LECTURE    I. 


THE    CONSTRUCTION,    DEPARTMENTS,    AND    PURPOSE    OF    TlIE    SYSTEM,    STATE    AND 
NATIONAL,  WUICn  CONSTITUTES  THE  GOVERNMENT  OF  THE  UNITED  STATES. 


The  citizens  of  the  United  States  are  somewhat  con- 
versant with  the  science  of  political  economy.  It  is 
essential  to  the  maintenance  of  their  rights,  to  a  proper 
discharge  of  their  duties,  that  a  knowledge  of  these 
rights,  these  duties,  should  be  encouraged  and  increased. 
All  men  have  certain  essential  and  unalienable  rights.* 
Whenever,  or  wherever,  they  reside  in  proximity  with 
each  other,  clothed  with  these  natural  rights,  a  limitation 
upon  their  exercise  must  exist,  to  prevent  collision.  It 
is  certain  that  an  individual,  in  a  state  of  society,  or  of 
proximity  with  a  neighbor,  must  exercise  these  rights  so 
as  not  to  destroy  or  impair  those  which  apj^ertain  to 
every  other  individual.  Hence  the  necessity  and  origin 
of  government,  and  the  recognition  of  the  legal  position 
which  requires  every  person  so  to  use  his  rights  as  not 
to  destroy  or  impair  the  rights  of  another.  The  end  of 
the  institution,  maintenance,  and  administration  of  gov- 
ernment is,  to  secure  the  existence  of  the  body  politic ;  to 

*  Constitution  of  Massachusetts,  Part  First,  Art.  I.  All  men  are  born  free 
and  equal,  and  have  certain  natural,  essential,  and  unalienable  rights ;  among 
■which  may  be  reckoned  the  right  of  enjoying  and  defending  their  lives  and 
liberties ;  that  of  acquiring,  possessing,  and  protecting  property ;  in  fine,  that 
of  seeking  and  obtaining  their  safety  and  happiness. 

1 


A  THE     SCIENCE     OF     GOVERNMENT. 

protect  it ;  and  to  furnish  the  individuals  who  compose  it 
Avitli  the  power  of  enjoying  in  safety  and  tranquilUty 
their  natural  rights,  and  the  blessings  of  life.'"'  In  other 
words,  the  object  of  government  is,  to  sustain  and  enforce 
limitations  upon  the  supposed,  upon  the  actual,  natural 
rights  of  the  individuals,  ujDon  which  it  operates,  so  far  as 
a  limitation  of  such  rights  is  essential  to  the  existence  of 
well  regulated  civil  society.  Whenever  individuals,  pass- 
ing in  opposite  directions  upon  the  same  public  way, 
meet,  each  with  equal  right,  they  pass  on  opposite  sides. 
Force  is  the  basis  upon  which  the  power  of  every  gov- 
ernment has  reposed,  and  ever  must  repose  for  its  security. 
Government  must  have  in  its  construction  and  within  its 
control,  capacity  or  power  commensurate  with  any  and 
every  contingency  to  which  it  may  be  exposed.  Nothing 
less  is  adequate  to  the  accomplishment  of  the  purpose 
sought  to  be  attained  by  the  establishment  of  govern- 
ment. This  position  is  true  of  the  system  under  which 
we  live,  notwithstanding  we  are,  more  or  less,  accustomed 
to  think  and  to  act  as  though  we  had  no  government, 
and  no  occasion  for  its  restraining  influence.  The  main- 
tenance of  private  right,  which  is  the  purpose  and  end 
of  government,  is,  in  this  country,  to  a  great  extent,  and 
so  far  as  the  daily  and  ordinary  relations  of  life  are  con- 
cerned, obtained  through  the  instrumentality  of  the 
judiciary,  whose  noiseless  step  is  perceived  only  b}^  those 
who  are  the  immediate  parties  to  its  adjudications.  In 
this  department,  force  coextensive  with  the  entire  power 
and  strength  of  the  government  under  which  it  acts  is 
always  found  within  its  power  and  control.  The  most 
important  inquiry  which  can  arise  in  relation  to  any 
system  of  government  is,  —  what  quantity  of  power  shall 
be  confided  —  how  and  by  whom  shall  it  be  exercised. 

*  Constitution  of  Massachusetts  —  Preamble. 


THE     SCIENCE     OF     GOVERNMENT.  6 

A  supposed  solution  of  this  question  was  discovered  by 
those  who  estabhshed  our  system ;  and  it  constitutes  the 
difference  between  it  and  other  systems.  This  solution 
consists  in  an  assumption,  that  the  least  quantity  of  power 
which  can  with  safety  be  relied  upon  as  adequate  to  a 
maintenance  of  private  and  of  public  right,  should  be 
conceded;  that  the  direction  and  manner  of  using  this 
power  should  be  defined  in  written  constitutions,  having 
to  some  extent  a  permanent  and  fixed  character;  that 
the  persons  or  departments  intrusted  with  its  exercise 
should  be  designated  by,  and  made  responsible  to,  the 
people,  for  a  proper  discharge  of  the  trusts  reposed  in 
them ;  that  a  well  educated  people  are  competent  to 
determine  the  quantity  of  power  to  be  conferred,  the 
time  and  manner  in  which,  and  the  departments  and  per- 
sons by  which  and  by  whom  it  may  be  exercised. 

Our  system  of  government  is  the  result  of  this 
assumption ;  thus  far,  its  soundness  or  accuracy  has  not 
been  disproved  or  impeached.  So  long  as  its  main 
foundation,  the  intelligence  and  integrity  of  the  people, 
shall  continue,  no  reasonable  cause  of  apprehension  or 
danger  can  arise.  Whenever  this  foundation  shall  be 
broken,  the  system  will  go  down  —  not  because  it  does 
not  possess  or  contain  in  its  construction  a  grant  of  power, 
a  grant  of  force  adequate  to  its  support,  but  because, 
whenever  a  majority  of  the  people  shall  lose  their  intel- 
ligence and  integrity,  the  persons  who  may,  at  the  time, 
be  charged  with  the  duty  of  performing  and  executing 
the  trusts  of  government,  will  be  no  better,  no  more  hon- 
est, no  more  intelligent  than  will  be  those  by  whom  they 
shall  have  been  elected.  It  must  therefore  be  conceded, 
that  the  form  of  government  which  may  be  adopted  in 
any  country,  with  any  rational  hope  of  success,  must  be 
in  accordance  with  the  habits,  circumstances,  and  degree 
of  civilization  attained,  of  and  by  the  people  for  whom  it 


4  THE     SCIENCE     OF     GOVERNMENT. 

is  designed,  and  upou  which  it  is  to  operate ;  that  the 
quantity  of  power  to  be  conferred  may,  within  certain 
limits,  be  diminished  in  the  same  ratio,  as  intelhgence, 
education,  and  inteo:ritv  shall  be  increased.  It  must  also 
be  conceded,  that  the  strength  of  our  system,  having  its 
origin  in  the  assumption  to  which  reference  has  been 
made,  does  not  depend  so  much  upon  its  form,  upon  its 
constitutional  capacity  for  self-preservation,  as  it  does 
upon  the  moral  jiower  which  is  derived,  and  can  be 
derived  only  from  a  correct,  calm,  and  disingenuous  pub- 
lic opinion.  In  ancient  Greece,  it  was  an  admitted  and 
received  maxim,  that,  "  to  the  king  and  to  the  common- 
wealth nothing  is  unjust  which  is  useful." '='  In  the  sense 
in  which  the  maxim  w^as  understood,  it  had  no  foundation 
in  morality  or  reason.  In  our  political  theory,  nothing  is 
useful  w^hich  is  unjust.  I  propose  to  examine  this  theory 
in  some  of  its  general  features  —  to  induce  you  to  make, 
and,  if  possible,  to  aid  you  in  an  examination  of  it.  I 
do  not  expect  to  present  for  your  consideration  any  sub- 
ject which  has  not  been  discussed  and  examined.  I  shall 
use  the  language  and  sentiments  of  others  whenever 
either  suit  my  purpose.  If,  in  some  instances,  I  present 
views  which  may  be  regarded  as  peculiar  or  erroneous, 
their  peculiarity  and  incorrectness  may  be  easily  detected. 
Our  system  of  government  is  composed  of  two  distinct, 
sovereign  jurisdictions,  each  limited  by  a  certain  and  pre- 
scribed boundary,  beyond  which  it  cannot  pass.  Each 
sovereignty,  although  limited  within  its  limit,  is  supreme  ; 
the  limit  and  boundary  of  each  are  established  by 
written  constitutions.  These  sovereignties  are  known, 
the  one  as  a  national,  the  other  as  a  state  government ; 
each  operates  upon  the  same  territory,  upon  the  same 
persons,  upon  the  same  things.     The  rights,  duties,  and 

*  Wheaton,  Law  of  Nations,  p.  5. 


THE    SCIENCE     OF     GOVERNMENT.  0 

relations  of  every  citizen  are  defined,  regulated,  and 
upheld,  in  some  particulars  and  at  some  times  by  the 
former,  in  other  particulars  and  at  other  times  by  the 
latter.  The  purpose  of  this  double  power,  of  this  estab- 
lishment and  construction  of  an  empire  v^ithin  an  empire, 
in  its  most  comprehensive  aspect,  is  individual.  It  is  to 
secure  to  the  citizen  protection  in  his  person,  character, 
and  property.  The  national,  designated  the  federal  gov- 
ernment, was  proposed  and  designed  to  protect  the  citizen 
in  the  enjoyment  of  his  life,  liberty,  and  estate  from  any 
and  every  molestation  or  injury  which  might  arise  from 
the  interference  of  foreign  nations  or  their  citizens,  or 
of  one  state  or  its  citizens  with  the  internal  arrangement 
and  affairs  of  another;  to  regulate,  in  fact,  the  inter- 
course of  the  citizens  of  the  several  states  with  the  citi- 
zens of  every  other  state,  and  with  the  citizens  and 
governments  of  foreign  nations. 

The  state  government  was  designed  to  protect  its 
citizens  in  their  intercourse  with  each  other  and  within 
the  state,  to  which  they  belong.  This  government 
reaches,  if  I  may  so  say,  nearer  home,  and  operates  upon 
and  controls  our  rights,  our  duties,  and  obligations  as 
members  of  society.  It  is  the  shield  and  the  arbiter  of 
our  common  and  daily  duties.  Each  of  these  govern- 
ments is  a  government  of  law.  The  liberty  of  which 
we  boast  the  enjoyment  is  regulated  by  law,  and  when- 
ever it  shall  cease  to  be  so  regulated  it  will  cease  to  be 
liberty.  So  long  as  you  keep  this  truth  in  mind,  and 
adhere  to  it,  your  institutions  will  withstand  all  assaults, 
external  and  internal,  —  they  will  enable  you  to  reach 
the  highest  point  of  civilization,  —  they  will  enable  you 
to  make  good  the  assumption  of  your  fathers,  that  an 
intelligent,  well  educated  people  are  competent  to  estab- 
lish their  own  system  of  government,  are  competent  to 
discharge  its  trusts. 


6  THE     .SCIENCE     OF     GOVERNMENT. 

Our  country  comprehends  thirty-one  states  —  thirty- 
one  governments  —  each  occupying  a  prescribed  and 
well  defined  territory,  which,  so  far  as  any  other  state  is 
concerned,  with  some  few  exceptions,  is  exclusively  its 
own.  These  states,  in  many  particulars,  are  foreign  to 
each  other.  The  people  of  these  several  states  are  citi- 
zens of  the  state  to  which  they  belong,  and  within  which 
they  reside;  they  also  have  the  capacity,  the  right  to 
become  citizens,  at  their  election,  of  any  other  of  the 
several  states ;  they  are  also  citizens  of  the  federal  gov- 
ernment. The  constitution  of  the  United  States  is  the 
charter  of  the  national  government.  It  contains,  defines, 
and  prescribes,  in  general  terms,  the  system  of  govern- 
ment by  which  we  are  politically  known  to  foreign 
nations,  by  which  we  are  protected  from  their  control, 
and  by  which  the  citizens  of  the  several  states,  in  their 
intercourse,  are  regulated.  The  government  thus  estab- 
lished is  not  a  government  of  states,  it  is  a  government 
of  the  people.  It  was  established,  not  by  the  states  act- 
ing as  sovereignties,  but  by  the  people.  The  instrument 
contains  a  distinct  enunciation  of  this  position.  It  says, 
"  We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tran- 
quillity, provide  for  the  common  defence,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity,  do  ordain  and  establish  this 
constitution  for  the  United  States  of  America."  '='  Not- 
withstanding this  declaration,  so  clear  and  explicit  in  its 
terms,  its  truth  and  propriety  have  been  questioned,  and 
efforts  have  been  made  to  resist,  to  pervert  its  plain 
import,  —  all  of  which  have  fliiled.  As  the  states  which 
compose  the  Union  have  increased  in  number,  and  as 
they  may  increase,  —  as  the  interests  of  different  localities 

*  Constitution  of  United  States  —  Preamble. 


THE     SCIENCE     OF     GOVERNMENT.  7 

become  more  diverse,  —  the  importance  of  this  position, 
which  is  the  foundation  of  the  system,  will  be  more  mani- 
fest, and  an  adherence  to  it  is  essential  to  the  success  of 
the  constitution.  The  late  Chief  Justice  Marshall,  in 
delivering  a  judgment  of  the  Supreme  Court  of  the 
United  States,*  incidentally  considered  and  stated  the 
mode  in  which  the  constitution  of  the  United  States  had 
been  adopted,  and  its  character  as  a  government  of  the 
people.  He  says :  "  The  convention  which  framed  the 
constitution  was  elected  by  the  state  legislatures.  But 
the  instrument,  when  it  came  from  their  hands,  was  a 
mere  proposal.  It  was  reported  to  the  then  existing 
congress  (which  had  been  organized  under  the  then 
existing  articles  of  confederation)  of  the  United  States, 
with  a  request,  that  it  might  be  submitted  to  a  convention 
of  delegates  chosen  in  each  state  by  the  people  thereof, 
under  the  recommendation  of  its  legislature,  for  their 
assent  and  ratification.  This  mode  of  proceeding  was 
adopted ;  and  by  the  convention,  by  congress,  and  by  the 
state  legislatures,  the  instrument  was  submitted  to  the 
people.  They  acted  upon  it  in  the  only  manner  in 
which  they  can  act  safely,  effectively,  and  wisely  on  such 
a  subject,  by  assembling  in  convention ;  —  they  assembled 
in  their  several  states ;  —  when  the  people  act,  they  must 
act  in  their  states.  The  measures  they  adopt  do  not,  on 
that  account,  cease  to  be  the  measures  of  the  people,  or 
become  the  measures  of  the  state  governments.  From 
these  conventions  (of  the  people)  the  constitution  derives 
its  whole  authority.  The  government  proceeds  directly 
from  the  people ;  is  ordained  and  established  in  the  name 
of  the  people  ;  —  the  assent  of  the  states  in  their  sovereign 
capacity  is  implied  in  calling  a  convention,  and  thus  sub- 
mitting the  constitution  to  the  people.     Bat  the  people 

*  McCuUock  V.  The  State  of  Maryland,  4  Wheat.  Rep.  316. 


8  THE     SCIENCE     OF     GOVERNMENT. 

were  at  perfect  liberty  to  accept  or  reject  it ;  and  their 
action  was  final.  It  required  not  the  affirmance  of,  and 
could  not  be  negatived  by,  the  state  governments.  The 
constitution,  when  thus  adopted,  was  of  complete  obliga- 
tion, and  bound  the  state  sovereignties.  The  government 
of  the  Union,  then,  is  emphatically  and  truly  a  govern- 
ment of  the  people.  In  form  and  substance  it  emanated 
from  them.  Its  powers  are  granted  by  them  and  for 
their  benefit.  This  government  is  acknowledged  by  all 
to  be  one  of  enumerated  powers  ;  —  the  principle,  that  it 
can  exercise  only  the  powers  granted  to  it,  is  now  uni- 
versally admitted.  But  the  question,  respecting  the 
extent  of  the  powers  actually  granted,  is  perpetually 
arising,  and  will  probably  continue  to  arise  so  long  as  our 
system  shall  exist.  The  government  of  the  United  States, 
then,  although  limited  in  its  powers,  is  supreme  ;  and  its 
laws,  when  made  in  pursuance  of  the  constitution,  form 
the  supreme  law  of  the  land,  any  thing  in  the  constitu- 
tion or  laws  of  any  state  to  the  contrary  notwithstand- 
ing." In  a  more  recent  case,  the  same  eminent  jurist 
affirmed  these  views,  and  again  says :  '•  The  constitution 
(of  the  United  States)  was  ordained  and  established  by 
the  people  of  the  United  States,  for  themselves,  for  their 
own  government,  and  not  for  the  government  of  the 
individual  states.  Each  state  established  a  constitution 
for  itself,  and  in  that  constitution  provided  such  lunita- 
tions  and  restrictions  on  the  powers  of  its  particular 
government  as  its  judgment  dictates.  The  people  of  the 
United  States  framed  such  a  government  for  the  United 
States  as  they  supposed  best  adapted  to  their  situation, 
and  best  calculated  to  promote  their  interests.  The 
powers  conferred  upon  the  federal  government  are  to  be 
exercised  by  itself;  —  the  limitations  of  power  contained 
m  the  instrument,  unless  the  contrary  expressly  appears, 
are  applicable  to  the  government  therein  created.     The 


THE     SCIENCE     OF     GOVERNMENT.  9 

states  in  their  several  constitutions  imposed  such  restric- 
tions on  their  respective  governments  as  their  own  wis- 
dom suggested  —  such  as  they  deemed  most  proper  for 
themselves."  * 

From  these  extracts,  and  from  the  short  general  view 
presented,  it  results  that  certain  power,  for  certain  para- 
mount purposes  no  less  important,  has  been  confided  to 
the  state  government  by  the  people  —  the  source  and 
fountain  of  all  power  which  either  sovereignty,  state  and 
national,  enjoys.  All  power  and  authority  not  so  con- 
ferred resides  in  and  with  the  people  unrestrained, 
which  they  may  exercise  at  will,  exercising  it  so  as  not 
to  weaken  or  in  any  way  render  unavailing  and  useless 
the  powers  surrendered.  Individuals  of  other  countries 
do  not  perceive  how  two  jurisdictions  can  exist  without 
conflict.  Some  of  our  own  statesmen  have  occasionally 
feared  collision.  If  conflict  shall  arise,  it  will  result,  not 
from  the  deficiencies  or  incompleteness  of  the  system, 
but  from  a  disposition,  on  the  part  of  those  who  admin- 
ister it,  to  lessen  and  detract  from  the  rightful  power  and 
province  of  the  one  sovereignty,  so  as  thereby,  in  fraud 
of  the  system,  to  build  ujd  and  elevate  the  other. 

This  division  of  power  is  the  source  and  secret  of  our 
security.  As  an  illustration  of  the  theory  of  our  system 
a  single  exercise  of  power,  in  and  by  each  sovereignty, 
may  be  stated,  from  which  it  will  be  perceived,  that  no 
danger  or  cause  of  conflict  can  exist.  The  federal  gov- 
ernmemt  has  the  exclusive  power  to  make  treaties,  to 
declare  war.  The  state  government  has  the  exclusive 
power  to  prescribe  the  formalities  with  which  a  will  or 
other  testamentary  paper  shall  be  executed;  to  say 
how  title  to  estates,  real  or  personal,  within  its  limits 


*  Barron  v.  The  Mayor  and  City  Council  of  Baltimore.     7  Peter's  Sup.  Ct. 
Rep.  243. 

2 


10  THE    SCIENCE    OF     GOVERNMENT. 

shall  be  acquired.  Tliese  powers  are  not  inconsistent, 
and  the  exercise  of  them  by  the  different  sovereignties  to 
which  they  are  confided  cannot  produce  collision.  These 
instances  are  understood  ;  others  more  difficult  of  solution 
and  more  complex  have  arisen  and  must  arise.  They 
have  been,  and  are  to  be  controlled  upon  the  same  prin- 
ciple as  the  cases  stated,  with  the  addition  of  two  well 
established  propositions,  —  one  of  which  is,  wdienever 
two  jurisdictions,  political  or  judicial,  have  concurrent 
power  and  authority,  the  one  which  first  attaches  upon 
its  object,  be  it  person,  thing,  or  contract,  cannot  right- 
fully be  displaced  or  impeded,  until  its  rightful  and  legal 
purpose  shall  have  been  accomplished,  until  its  power 
shall  have  been  exercised,  or  voluntarily  surrendered. 
The  other  is,  that  the  constitution  of  the  United  States, 
and  the  laws  and  treaties  of  the  United  States,  made 
in  conformity  with  the  constitution,  constitute  the 
supreme  law  of  the  land,  and  no  state  legislation  can 
control  it.  It  follows,  if  each  sovereignty  shall  be  con- 
tent with  its  own  trusts,  each  performing  its  peculiar 
duties,  and  asserting  in  good  faith  and  in  a  spirit  of 
comity  its  own  rights,  the  two  sovereignties  will 
together  constitute,  as  they  were  designed  to  constitute, 
one  system.  The  right  of  sovereignt}^  exercised  by  the 
federal  government  may  be  designated  as  external  and 
occasional,  although  it  is,  in  some  particulars,  internal  and 
constant ;  that  of  the  state  government,  as  internal,  and 
within  its  province,  without  interruption.  If  these  rights 
are  exercised  by  the  federal  and  state  sovereignties, 
within  their  respective  limitations,  they  cannot  come  in 
conflict.  And  wdien  a  conflict  occurs,  the  inquiry  must 
be,  which  is  the  paramount  law,  —  this  must  depend  upon 
the  supremacy  of  the  power  by  which  the  law,  the  sub- 
ject of  the  conflict,  was  enacted.  The  federal  govern- 
ment is  supreme  in  the  exercise  of  powers  delegated  to 


THE    SCIENCE     OF     GOVERNMENT.  11 

it ;  but  beyond  this,  its  acts  are  unconstitutional  and  void. 
The  acts  of  the  several  states  are  void  when  they  do 
that  which  is  inhibited  to  them,  or  exercise  a  power 
which  the  people  have  exclusively  delegated  to  the  fed- 
eral government.  With  an  exception  of  the  powers 
delegated  to  the  federal  government,  the  several  states, 
resting  and  acting  upon  their  original  sovereignty,  exer- 
cise their  powers  over  every  thing  connected  with  their 
social  and  internal  condition.  A  state  regulates  its 
domestic  commerce,  the  transmission  of  estates,  real  and 
personal,  and  acts  upon  all  internal  matters  which  relate 
to  its  moral  and  political  welfare.  The  state  govern- 
ment regulates  the  contracts  of  its  citizens,  provides  for 
their  execution  and  performance,  restrained  only  in  this 
exercise  of  authority,  by  an  inhibition,  found  in  the  con- 
stitution of  the  United  States,  "  that  no  state  shall  pass 
any  law  impairing  the  obligation  of  contracts."  Over 
these  subjects  the  federal  government  has  no  power  — 
they  appertain  to  the  state  sovereignty  exclusively.  The 
powers  of  the  federal  sovereignty  are  equally  exclusive.* 
Whenever  either  jurisdiction  shall  be  supposed  to  have 
transcended  its  appropriate  limit,  in  matters  of  private 
concernment,  those  persons,  the  rights  of  which  are 
thereby  controlled  or  diminished,  may  correct  the  error, 
by  recourse  to  the  judicial  department,  state  or  national, 
as  the  one  or  the  other  may  have  jurisdiction.  Each  of 
the  sovereignties,  state  and  national,  are  divided  into 
departments,  through  the  instrumentality  of  which  their 
several  trusts  are  performed :  these  departments  are 
designed  to  operate  as  checks  upon  each  other.  The 
federal  sovereignty  has  three, — the  legislative,  the  judicial, 
and  the  executive.  The  creation  of  these  departments, 
the  duties  appertaining  to  each,  and  the  mode  in  which 

*  The  license  cases,  5  How.  Eep.  588.  Opinion  of  Mi-.  Justice  McLean. 


12  THE    SCIENCE    OF    GOVERNMENT. 

they  execute  the  powers  conferred,  may  be  learned  by 
an  examination  of  the  constitution  of  the  United  States. 
The  legislative  power  of  the  federal  government  is  vested 
in  a  congress  of  the  United  States,  which  consists  of  a 
senate  and  house  of  representatives.  This  department, 
in  the  exercise  of  the  authority  or  grant  of  jurisdiction 
with  which  it  is  invested,  is  subject  to  a  qualified  right  of 
veto  conferred  upon  the  executive.  The  house  of  rep- 
resentatives is  composed  of  members  chosen  every  second 
year  by  the  people  of  the  several  states.  No  person 
shall  be  a  representative  who  shall  not  have  attained  to 
the  age  of  twenty-five  years,  and  shall  have  been  seven 
years  a  citizen  of  the  United  States,  and,  at  the  time  of 
his  election,  shall  be  an  inhabitant  of  the  state  in  which 
he  shall  be  chosen.  The  representatives  are,  from  time 
to  time,  apportioned  among  the  several  states  according 
to  their  respective  numbers,  which  shall  be  determined 
by  adding  to  the  whole  number  of  free  persons,  including 
those  bound  to  service  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  three-fifths  of  all  other  persons.  To 
ascertain  the  number  of  representatives,  an  enumeration 
of  the  people  is  made  every  ten  years.  When  vacancies 
occur  in  the  representation  from  any  state,  they  are 
filled  by  an  election  for  the  unexpired  term  of  two 
years.^-'-  The  senate  of  the  United  States  is  composed  of 
two  senators  from  each  state,  chosen  by  the  legislature 
thereof  for  six  years.  No  person  can  be  a  senator  who 
shall  not  have  attained  to  the  age  of  thirty  years,  and 
shall  have  been  a  citizen  of  the  United  States  for  nine 
years,  and  at  the  time  of  his  election  an  inhabitant  of 
the  state  for  which  he  shall  be  chosen.  The  presiding 
officer  of  this  body  is  not  a  member,  but  is  the  vice- 
president  of  the  United  States,  although  in  the  event  of 

*  Constitution  of  United  States,  art.  i,  sec.  2. 


THE     SCIENCE     OF     GOVERNiMENT.  13 

his  absence,  inability  to  discharge  the  duty,  or  death,  a 
member  of  the  body  is  chosen  as  presiding  officer  for  the 
time  being.*  The  times,  places,  and  manner  of  holding 
elections  for  senators  and  representatives  shall  be  pre- 
scribed, in  each  state,  by  the  legislature  thereof;  but  the 
congress  may,  at  any  time,  by  law  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  senators.-|* 
The  senators  chosen  immediately  after  the  adoption  of 
the  constitution,  were,  in  accordance  with  the  instrument, 
divided  into  three  classes,  the  first  of  which  went  out  of 
office  at  the  end  of  two,  the  second  at  the  end  of  four, 
the  third  at  the  end  of  six,  years.  The  effect  of  which 
classification  is,  that  thereafter  and  now,  one  third  of  the 
members  go  out  at  the  end  of  every  two  years.  The 
congress,  of  which  I  have  given  the  component  parts,  is 
required  by  the  constitution  to  hold  at  least  one  session 
annually.  It  may  be  convened  more  frequently  by  the 
executive,  if  the  public  interest  shall  require.  The  con- 
struction and  organization  of  this  body  exhibits  extraor- 
dinary capacity,  great  judgment,  an  accurate  knowledge 
and  comprehension  of  an  enlarged,  liberal  political 
economy.  It  regards  the  popular  will,  it  avoids  the  evils 
which  might  result  from  any  sudden  excitement,  caprice, 
passion,  or  prejudice  on  the  part  of  the  people.  It 
regards  the  dignity  and  political  equality  of  the  several 
states.  An  analysis  of  the  provision  to  which  I  have 
referred  will  show  the  delicacy  and  distinctness  with 
which  these  different  elements  have  been  regarded  and 
blended.  The  representative  is  chosen  by  a  direct  ballot 
of  the  people.  His  term  of  office  is  short,  so  that 
every  two  years  he  returns  to  the  people  a  private  citi- 
zen, and  may  again  be  elected  or  not  as  the  interest  and 
judgment  of  his  constituents  may  require.     The  senator 

*  Constitution  of  United  States,  ai-t.  i,  sec.  3.  f  Ibid.  art.  i,  sec.  4. 


14  THE     SCIENCE     OF     GOVERNMENT. 

is  chosen,  not  by  a  direct  suffrage  of  the  people,  but  by 
the  state  legislature  of  the  state  from  which  he  is  elected. 
His  term  of  service,  his  age,  is  greater.  Pie  is  not  so  near, 
not  so  dependent  upon  the  direct  act  of  the  people  as  the 
representative.  It  is  presumed,  therefore,  that  he  will  be 
less  solicitous  of  his  own  immediate  personal  popularity, 
—  that  he  will  trust  in  this  particular,  to  the  calm,  dis- 
passionate judgment  of  his  countrymen,  acting  upon  a 
full  survey  of  his  course  uninfluenced  hy  any  sudden,  ill- 
advised  outbreak  of  popular  feeling.  The  senators  of 
each  state,  as  members  of  the  senate,  stand  upon  equal 
tenns  with  those  of  every  other  state,  so  far  as  political 
power  and  authority  is  concerned,  without  reference  to 
the  population,  wealth,  or  local  position  of  the  state 
which  they  represent.  In  this  particular,  the  several 
states  exercise  an  equal  power  and  influence.  The  pre- 
siding officer  of  the  senate  beino;  the  second  hifjhest 
officer  in  the  executive  department,  (the  vice-president,) 
elected  by  the  suffi'ages  of  a  majority  of  the  people  of 
the  several  states,  having  no  vote  except  the  senators 
shall  be  equally  divided,  having  no  right  to  discuss  the 
measures  under  consideration,  will,  it  is  presumed,  be 
calm,  firm,  and  uninfluenced  in  the  exercise  of  his  func- 
tions by  any  sectional  consideration.-'- 

From  this  survey  of  the  legislative  department,  it  is 
difficult  to  perceive  how  or  wherein  greater  or  more 
effectual  precaution  could  have  been  exercised  to  pre- 
vent arbitrary,  oppressive,  or  sectional  legislation  ^  espe- 
cially is  it  to  be  so  regarded  when  we  consider  that  the 
two  bodies  of  which  congress  is  composed  act  separate 


*  Constitution  of  the  United  States,  art.  i.  sec.  3.  There  is  no  express 
provision  that  the  vice-president  shall  not  discuss  measures  before  the  senate  ; 
but  as  he  is  not  a  member  of  the  bodv,  he  has  no  right,  except  to  preside  over 
the  deliberations  of  the  senate,  and  to  vote  in  the  event  of  an  equal  division  of 
the  senators  votintr. 


THE     SCIENCE     OF     GOVERNMENT.  15 

from,  and  independent  of,  each  other.  In  addition  to 
these  provisions,  the  quahfied  power  of  disapproval,  with 
wdiich  the  executive  has  been  invested,  may  be  regarded 
as  affording  additional  security  against  unwise  legislation. 
The  house  of  representatives  was  originally  composed 
of  sixty-five  members,  arbitrarily  fixed  and  distributed 
among  the  thirteen  states.  This  was  designed  to  enable 
the  government  to  go  into  operation  and  perform  its 
duties  imtil  an  enumeration  of  the  inhabitants  could  be 
made,  which  was  required  to  be  made  within  three  years. 
As  the  law^  now  is,  every  state  is  entitled  to  at  least  one 
representative.  With  this  qualification,  the  members 
cannot  exceed  one  for  every  thirty  thousand  inhabitants.* 
The  number  of  senators  cannot  be  enlarged  or  diminished 
beyond  two  from  each  state.f  Each  house  is  the  exclu- 
sive judge  of  the  election  and  qualification  of  its  own 
members,  —  each  prescribes  its  own  rules  of  action. J  The 
members  are  paid  from  the  treasury  of  the  United  States, 
—  they  are  privileged  from  arrest  in  all  cases,  except 
treason,  felony,  and  breach  of  the  peace,  during  their 
attendance  at  the  session  of  their  respective  houses,  and 
in  going  to  and  returning  from  the  same.  For  any 
speech  or  debate  in  either  house,  they  shall  not  be  ques- 
tioned in  any  other  place.  §  This  construction  of  the 
legislative  department  manifests  a  design  to  uphold  the 
power  and  authority  of  the  people,  against  corrupt  and 
oppressive  government,  against  corrupt  and  unworthy 
legislators.  Equally  manifest  is  an  intent  to  protect  the 
people,  to  some  extent,  from  themselves.  It  also  exhibits 
an  omission  of  any  express  provision  by  which  the  gov- 
ernment of  the  United  States  may  uphold  itself,  in  a 
certain  contingency,  independent  of  any  action  by  the 


*  Constitution  of  United  States,  art.  i,  sec.  2.  f  Ibid.  art.  i,  sec.  3. 

\  Ibid.  art.  i,  sec.  5.  §  Ibid.  art.  i,  sec.  G. 


U»  THE     SCIENCE     OF    GOVERNMENT. 

several  states.  Congress  may  effectually  secure  the  con- 
tinuance of  the  house  of  representatives  by  its  own 
action,  if  the  several  states  do  not  exercise  the  power 
confided  to  them  in  this  respect;  no  such  power  is, 
unless  by  implication,  conferred  in  relation  to  the  senate. 
If  every  state  in  the  Union  should,  at  the  same  time,  and 
for  six  consecutive  years,  decline  to  choose  senators,  an 
integral  part  of  the  federal  government  would  become 
vacant.  This  omission  was  the  subject  of  discussion 
before  the  constitution  was  adopted.  It  did  not,  however, 
create  any  alarm  in  the  minds  of  those  who  advocated 
an  adoption  of  the  sj-stem,  although  it  was  regarded 
by  Alexander  Hamilton  as  an  evil,  but  as  an  evil  which 
could  not  have  been  avoided,  without  excluding  the 
states,  in  their  political  capacities,  from  a  place  in  the 
organization  of  the  national  government.'-'  The  second 
department  (adopting  a  classification  resulting  from  the 
nature  and  the  order  of,  and  in  wdiich,  the  duties  of  the 
different  departments  are  to  be  performed)  is  the  judicial. 
The  constitution  provides,  that  the  judicial  power  of  the 
United  States  shall  be  vested  in  one  supreme  court,  and 
in  such  inferior  courts  as  the  congress  may,  from  time  to 
time,  order  and  establish.  The  judges,  both  of  the 
supreme  and  inferior  courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation  which  shall  not  be  diminished 
during  their  continuance  in  office,  f  The  judicial  power 
shall  extend  to  all  cases,  in  law  and  in  equity,  arising 
under  the  constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their 
authority ;  to  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls ;  to  all  cases  of  admiralty  and  mar- 


*  The  Federalist.     Lecture  No.  59. 

t  Constitution  of  United  States,  art.  iii,  sec.  1 . 


THE     SCIENCE     OF     GOVERNMENT.  17 

itime  jurisdiction ;  to  controversies  to  which  the  United 
States  shall  be  a  party ;  to  controversies  between  two  or 
more  states,  between  citizens  of  different  states,  between 
citizens  of  the  same  state  claiming  lands  under  grants  of 
different  states,  and  between  a  state,  or  the  citizens 
thereof,  and  foreign  states/^' 

In  all  cases  affecting  ambassadors,  other  public  minis- 
ters, and  consuls,  and  those  in  which  a  state  shall  be  a 
party,  the  supreme  court  has  original  jurisdiction.  In  all 
the  other  cases  the  supreme  court  has  appellate  jurisdic- 
tion, with  such  exceptions  and  under  such  regulations  as 
the  congress  shall  make.  The  judicial  power  of  the 
United  States  is  limited  by  the  duties  and  rights  of  the 
federal  sovereignty,  of  which  it  is  an  important  part  or 
element.  The  enumeration  of  its  powers  excludes  its 
action  upon  any  matter  dependent  for  decision  upon  the 
municipal  law  of  an  individual  or  particular  state ;  con- 
troversies between  citizens  of  the  same  state,  with  a  single 
exception,  are  not  within  its  jurisdiction,  unless  they  are 
dependent  upon  the  constitution,  upon  some  law  or  right 
of,  or  under  the  federal  sovereignty.  Controversies  be- 
tween citizens  of  the  same  state,  except  as  already  stated, 
are  to  be  determined  by  the  action  of  the  judicial  tribu- 
nals of  the  state  in  which  they  may  arise  or  be  litigated. 
With  equal  distinctness,  rights  arising  under  the  consti- 
tution, under  treaties,  under  the  laws  of  the  United  States, 
the  rights  of  ambassadors  and  of  other  public  ministers, 
admiralty  and  maritime  rights,  suits  in  which  the  United 
States  is  a  party,  are  to  be  exclusively  adjudged  by  the 
federal  jurisdiction,  through  the  instrumentality  of  its 
judiciary. 

The  construction  of  this  department  exhibits  several 


*  Constitution  of  United  States,  art.  iii,  sec.  2.     Amendments  of  Constitu- 
tion, art.  xi. 


18  THE    SCIENCE    OF    GOVERNMENT. 

promment  purposes  sought  to  be  accomplished.  These 
are,  that  the  foreign  relations  of  the  United  States  should 
be  free  from  an}'^  control  or  supervision  of  any  state  sove- 
reignty ;  that  the  treaties  and  laws  of  the  federal 
sovereignty,  individual  right  derived  from,  or  under  them, 
should  be  construed  and  enforced  by  itself  It  exhibits 
the  truth  and  power  of  the  declaration  so  often  made  by 
the  United  States  to  all  other  nations,  —  "  although  many, 
we  are  one."  It  presents  also  a  clear  and  undoubted 
acknowledgment  of  the  independence  and  supremacy 
of  the  several  states,  and  of  their  laws,  as  a  general  pro- 
position, in  all  local  matters.  It  regards  the  sovereignty 
of  the  several  states  as  applicable,  with  one  or  two  limi- 
tations, to  all  matters  to  which  it  had  extended  before 
the  adoption  of  the  federal  constitution,  except  those 
growing  out  of  our  foreign  relations  and  intercourse,  and 
the  relation  of  the  several  states  to  and  with  each  other. 
The  arrangement  by  means  of  which  the  judicial  power 
thus  conferred  is  carried  into  effect,  consists  of  the 
supreme  court  of  the  United  States,  of  circuit  courts, 
of  district  courts,  of  commissioners,  marshals,  and  such 
officers  as  the  courts  may  appoint  to  aid  them  in  the 
investigations,  and  in  the  exercise  of  their  respective 
jurisdictions.  The  supreme  court  of  the  United  States  is 
now  composed  of  nine  judges;  it  holds  an  annual  session 
at  Washington,  the  seat  of  the  national  government. 
The  circuit  courts  correspond  in  number  with  the  num- 
ber of  the  states ;  the  circuits  correspond  in  number  with 
the  number  of  judges  of  which  the  supreme  court,  for 
the  time  being,  shall  be  composed,  the  limits  of  which, 
territorially,  are  defined  by  law,  and  each  circuit  now 
comprehends  three  or  more  states.  The  district  courts 
exceed  the  number  of  states,  as  some  of  the  states  are 
divided  into  two  judicial  districts,  to  avoid  an  inconve- 
nience  which   might   otherwise   result   from   extent   of 


THE     SCIENCE     OF     GOVERNMENT.  19 

territory.  The  circuit  court  in  each  state  is  holden  by  a 
judge  of  the  supreme  court  of  the  United  States,  and  by 
the  district  judge  of  the  district  within  which  the  circuit 
court  is  so  holden,  and  provision  is  made  by  law,  that  the 
circuit  court  may,  under  some  circumstances,  be  held  by  a 
district  judge.  Formerly,  any  one  of  the  judges  of  the 
supreme  court  might  preside  over  any  circuit  court 
within  the  United  States ;  now,  the  judges  are  allotted 
each  to  a  prescribed  circuit.  Every  district  court  is 
holden  by  a  district  judge,  ordinarily  by  the  judge 
appointed  for  the  district  over  which  he  presides,  although, 
in  some  instances,  a  district  judge  may  be  called  from  one 
district  to  another.  From  this  statement  it  will  be  per- 
ceived that  the  courts  of  the  United  States  are  of  three 
distinct  classes  or  divisions ;  —  the  judges  of  the  courts  of 
the  United  States  form  only  two  classes  or  divisions ;  — 
they  are  all  appointed  by  the  president  of  the  United 
States,  by  and  with  the  advice  and  consent  of  the  senate;  — 
they  may  be  selected  from  any  part  of  the  United  States, 
although  they  are  ordinarily  selected  from  the  circuit 
within  which  they  are  allotted  to  preside.  I  have  thus 
stated  substantially  the  outline  of  the  judicial  depart- 
ment of  the  United  States.  It  is  not  my  purpose  to  pre- 
sent, in  relation  to  any  of  the  departments,  all  the  parti- 
culars of  which  they  are  composed,  or  to  which  they 
extend,  but  it  is  to  present  a  general  view,  such  as  will 
enable  you  to  reflect  upon  the  system,  to  discover  its 
purpose,  its  adaptation  to  its  purpose,  —  to  judge  of  the 
accuracy  of  the  suggestions  in  relation  to  it  which  may 
be  made.  In  one  particular  the  judicial  department  is 
distinguishable  from  every  other  department. 

Its  officers,  the  judges,  in  their  appointment  are  more 
remotely  and  indirectly  dependent  upon  the  people ;  in 
their  term  of  office  they  are  less  dependent  upon  the 
people  than  any  other  officers.     This  feature  was  made 


20  THE    SCIENCE    OF    GOVERNMENT. 

a  ground  of  objection  to  an  adoption  of  the  system, 
although  it  was  in  conformity  with  the  plan  of  many 
of  the  state  constitutions,  almost  all  of  which  contained 
similar  provisions  as  to  the  tenure  of  judicial  office.  In 
reply  to  this  objection,  it  was  said  by  a  distinguished 
jurist '^^  that  "the  standard  of  good  behavior  for  the  con- 
tinuance in  office  of  the  judicial  magistracy,  is  certainly 
one  of  the  most  valuable  of  the  modern  improvements 
in  the  jDractice  of  government.  In  a  monarchy,  it  is  an 
excellent  barrier  to  the  despotism  of  the  prince ;  in  a 
republic,  it  is  a  no  less  excellent  barrier  to  the  encroach- 
ments and  oppressions  of  the  representative  body.  And 
it  is  the  best  expedient  which  can  be  devised  in  any  gov- 
ernment to  secure  a  steady,  upright,  and  impartial  admin- 
istration of  the  laws.  Whoever  attentively  considers  the 
different  departments  of  power  must  perceive,  that  in  a 
government  in  which  they  are  separated  from  each  other, 
the  judiciary,  from  the  nature  of  its  functions,  will  always 
be  the  least  dangerous  to  the  political  rights  of  the  con- 
stitution, because  it  will  be  least  in  a  capacity  to  annoy 
or  injure  them.  The  executive  not  only  dispenses  the 
honors,  but  holds  the  sword  of  the  community  ;  the  leg- 
islature not  only  commands  the  purse,  but  prescribes  the 
rules  by  which  the  duties  and  rights  of  every  citizen  are 
to  be  regulated;  the  judiciary,  on  the  contrary,  has  no 
influence  over  either  the  sword  or  the  purse,  no  direc- 
tion either  of  the  strength  or  of  the  wealth  of  the 
society,  and  can  take  no  active  resolution  whatever.  It 
may  truly  be  said  to  have  neither  force  nor  will,  but 
merely  judgment,  and  must  ultimately  depend  upon  the 
aid  of  the  executive  arm  for  the  efficacious  exercise  even 
of  this  faculty."  This  course  of  reasoning,  which  was 
approved  by  the   most  eminent,  learned,  and  patriotic 

*  The  Federalist,  Lecture  No.  78. 


THE     SCIENCE     OF     GOVERNMENT.  21 

men  in  the  country  at  the  time  it  was  used,  has  since 
been  doubted  and  disapproved.  In  many  of  the  several 
states,  at  this  time,  the  judicial  tenure  of  office  within 
the  state  is  a  term  of  years.  Which  system  is  the  best, 
it  is  not  my  province  to  determine.  It  cannot,  probably, 
be  determined  until  we  have  had  more  experience  of  the 
new  theory.  The  advocates  of  each  have  the  same  pur- 
230se,  which  is,  an  independent,  honest,  learned,  and 
upright  judiciary.  Without  a  judiciary  possessing  such 
qualifications,  private  and  individual  right  cannot  be  sus- 
tained for  an  hour.  When  private  right  fails  in  its  security 
and  protection,  public  right,  which  is  only  the  general 
name  applied  to  the  collection  of  individual  rights,  will 
exist  only  in  theory.  The  judicial  department,  therefore, 
although  the  weakest,  in  its  unaided  power  of  self-pre- 
servation, is  the  most  important  check  which  the  people 
can  have  as  a  reliance  against,  and  as  a  protection  from, 
the  encroachments  of  other  departments.  Like  the  main 
spring  in  a  watch,  it  may  not  improperly  or  inaccurately 
be  described  as  the  power  by  which  the  legal  capacity  of 
all  persons,  and  other  departments,  is  determined. 

I  proceed  to  the  third  department  of  the  federal  sys- 
tem, the  executive.  This  power  is  vested  in  a  "  Presi- 
dent of  the  United  States  of  America."  He  holds  his 
office  for  the  term  of  four  years.'-'  Provision  is  also  made 
for  the  election  of  a  vice-president,  who  holds  office  for 
the  same  term,  is  the  presiding  officer  of  the  senate,  and 
"in  case  of  the  removal  of  the  president  from  office,  or 
of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall 
devolve  on  the  vice-president."  In  the  event  of  a 
vacancy  in  both  these  offices,  or  inability  in  both  officers 
to  perform  the  duties,  congress  has  power  to  determine 

*  Constitution  of  the  United  States,  art.  ii,  sec.  1. 


22  THE     SCIENCE     OF     GOVERNMENT. 

what  officer  shall  then,  for  the  thne  being,  act  as  president. 
No  person  except  a  natural  born  citizen,  or  a  citizen  of 
the  United  States  at  the  time  of  the  adoption  of  the 
federal  constitution,  is  eligible  to  the  office  of  president ; 
neither  shall  any  person  be  eligible,  Avho  shall  not 
have  attained  the  age  of  thirty-five  j^ears,  and  been 
fourteen  years  a  resident  within  the  United  States.  The 
mode  of  election  of  president  and  vice-president  is  pre- 
scribed in  the  constitution ;  they  are  not  elected  by  a 
direct  intervention  or  Ijallot  of  the  people.  Each  state 
shall  appoint  (when  an  election  shall  occur)  in  such  man- 
ner as  the  legislature  thereof  may  direct,  a  number  of 
electors,  equal  to  the  whole  number  of  senators  and  rep- 
resentatives to  which  the  state  may  be  entitled  in  the 
congress.  But  no  senator  or  representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector.  The  time  and 
mode  at  and  in  which  the  electors  shall  exercise  their 
trust,  is  regulated  by  law.  If  they  fail  to  make  an  elec- 
tion of  president,  the  house  of  representatives  shall  make 
the   election  from  one  of  the  three  hio-liest  candidates. 

o 

If  no  election  of  vice-president  shall  be  made  by  the 
electors,  the  senate  make  the  choice  from  the  two  highest 
candidates.'-'  This  mode  of  making  an  electioii  of  the  pre- 
sident was  resisted  and  supported,  on  the  one  and  the  other 
side,  by  able  writers  before  the  constitution  was  adopted. 
In  the  election,  the  people  are  required  to  act  indirectly, 
through  electors  especiall}^  chosen  for  the  trust.  In  sup- 
port of  the  theory  it  was  urged,  that  the  immediate 
election  should  be  made  by  men  most  capable  of  analyz- 
ing the  qualities  adapted  to  the  station,  and  acting  under 
circumstances  favorable  to  deliberation,  and  to  a  judicious 
coml)ination  of  all  the   reasons   and    inducements   that 


*  Constitution  of  United  States.     Amendments,  art.  xi. 


THE     SCIENCE     OF     GOVERNMENT.  Zo 

were  proper  to  govern  their  choice.  A  small  number  of 
persons,  selected  by  their  fellow-citizens  from  the  general 
mass,  will  be  most  likely  to  possess  the  information  and  dis- 
cernment requisite  tfl  so  complicated  an  investigation.''' 
Although  the  executive  department  is  vested  by  the  con- 
stitution in  a  single  person,  the  president,  who  is  clothed 
with  power  and  authority  supposed  to  be  adequate,  the 
congress  have  established  sundry  subordinate  departments, 
by  the  aid  and  instrumentality  of  which  his  duties  are  to 
some  extent  performed.  These  departments  are  now  seven 
in  number ;  the  secretary  of  state,  of  the  treasury,  of  the 
interior,  of  war,  of  the  navy,  the  postmaster-general,  and 
the  attorney-general.  These  officers  constitute  the  cabinet, 
the  legal  advisers  of  the  executive.  They  are  not  responsi- 
ble for  the  acts  of  the  government  in  the  same  sense  and  to 
the  same  extent  as  the  members  of  the  cabinet  of  the 
British  crown  are  practically  responsible  for  the  acts  of  the 
crown.  The  president  of  the  United  States  is  alone 
responsible  for  the  fidelity  with  which  the  executive 
department  is  conducted.  He  is  therefore  vested  with 
authority  to  select  his  advisers,  subject  to  the  consent 
and  approval  of  the  senate,  which  is  always,  or  should 
always  be  given,  unless  some  well  founded  cause  of  objec- 
tion, other  than  mere  political  considerations,  of  a  party 
character,  exists  to  prevent  a  confirmation.  To  render 
the  executive  at  all  times  free  from  embarrassment  in  the 
exercise  of  the  duties  with  which  he  may  be  charged,  he 
exercises  an  uncontrolled  power  of  removal  over  his 
cabinet  officers ;  they  hold  office  subject  to  his  pleasure. 
Their  only  security  in  office  is  derived  from  a  faithful 
discharge  of  duty.  Their  title  to  the  confidence  of  the 
community  is  in  proportion  to  the  ability  and  integrity 
with  which  their  trusts  are  joerformed.     I  have  exhibited 

*  The  Federalist,  No.  68. 


24  THE    SCIENCE     OF    GOVERNMENT. 

the  general  construction  and  character  of  the  federal 
government  as  a  system,  independent  of  any  state  gov- 
ernment. The  same  prominent  features,  and  the  same 
principles  of  political  science  -which  arc  exhibited  in  this 
system,  are  to  be  found  in  the  several  state  constitutions. 
Each  state  government  has  a  written  constitution,  by 
which  its  powers,  duties,  and  rights  are  defined  ;  and 
they  are  to  every  substantial  purpose  the  same,  although 
provisions  are  found  in  some  of  these,  which  are  not  in 
others.  Many  of  these  instruments  are  preceded  by,  or 
contain  bills  of  right,  which  are  a  collection  or  state- 
ment of  some  of  the  rights  and  privileges,  which,  it  is 
supposed  and  assumed,  are  essential  and  unalienable ; 
the}^  contain  an  enunciation  of  some  of  the  principles  of 
government  which  are  regarded  liberal  and  free.  They 
are  similar  to  the  charters  or  declarations  of  right  which 
the  English  people,  from  time  to  time,  have  obtained 
from  the  crown,  but  are  more  extensive.  In  some  of  the 
states,  religious  tests  and  property  qualifications  exist, 
which  are  disaf)pearing,  and  will  soon  give  way  to  the 
popular  feeling  of  dislike.  In  every  state,  I  believe,  the 
law  of  entail,  by  which  land  descends  in  a  particular  line, 
to  the  exclusion  of  all  other  branches,  has  been  abro- 
gated, —  the  effect  of  which  has  been  in  favor  of  liberty 
and  the  rights  of  the  people.  The  acquisition  of  land  is 
open  and  easy  to  every  citizen  who  has  ordinary  indus- 
try and  economy.  The  effect  of  the  recognition  of  a 
right  so  dear  to  every  man,  upon  civilization,  upon  the 
well  being  of  society,  cannot  be  stated  in  terms  too  broad 
or  comprehensive.  The  purpose  of  the  state  govern- 
ment, as  already  stated,  is  to  secure  private  right,  to 
regulate  the  details  and  obligations  of  the  citizen  in  a 
state  of  society,  to  operate  upon  the  daily,  the  domes- 
tic conduct  and  pursuits  of  the  people.  The  action  of 
the  state  government  is  more  constant,  more  visible,  if 


THE     SCIENCE     OF     GOVERNMENT.  25 

I  may  so  say,  and  is  nearer  home  than  that  of  the  fede- 
ral government  was  designed  to  be,  or  can  be.  The 
territory  over  which  the  government  of  any  particular 
individual  state  is  extended,  is  not  extensive ;  as  a  conse- 
quence its  interests  and  capabilities  are  not  diverse,  and 
they  are  easily  guarded  and  rendered  available.  To 
accomplish  its  purpose,  each  state  government  is  divided 
into  three  departments,  the  legislative,  the  judicial,  and 
the  executive ;  each  of  which  is  organized  substantially 
the  same,  and  performs  its  functions  in  a  manner  simi- 
lar to  the  mode  in  which  similar  departments  in  the  fede- 
ral government  are  constituted  and  perform  their  duties. 
In  each  government,  state  and  national,  the  right  to  trial 
by  jury,  under  certain  restrictions  and  limitations,  which 
the  most  intelligent  and  patriotic  citizens  of  the  country, 
heretofore,  and  now  have  approved  and  do  approve,  has 
been  asserted  and  recognized  in  ample  terms.  In  many  of 
the  states,  the  judicial  tenure  of  office  has  been  changed  by 
provisions  which  make  the  judges  elective  by  the  people 
for  a  term  of  years.  The  effect  of  this  change  must  be 
determined,  as  I  have  already  said,  at  some  future  time. 
If  found  to  accomplish  its  purpose,  it  will  be  adhered  to 
and  extended ;  if  it  shall  operate  to  weaken  and  to  lessen 
the  independence  and  learning  of  the  judges,  the  people 
will  perceive  it,  and  as  a  matter  of  safety  will  return  to 
the  original  theory. 

The  system,  of  which  I  have  endeavored  to  present  an 
outline,  is  not  a  democracy ;  it  is  not  a  government 
administered  from  day  to  day,  by  the  direct  personal 
agency  of  the  people.  It  is  a  republic,  a  government 
which  the  people,  upon  which  it  operates,  established ; 
they  retain  the  power,  under  certain  checks  and  limita- 
tions, designed  to  prevent  impulsive  action,  to  change  its 
form  by  amendment ;  they  elect  some  of  the  officers  by 
direct  personal  ballot;  they  elect  others  through  their 

4 


26  THE    SCIENCE     OF     GOVERNMENT. 

agents.  Every  officer  in  the  state  and  in  the  federal 
government,  holds  his  place  by  the  power  and  authority 
of  the  people,  exercised  more  or  less  direct.  When 
elected,  he  continues  for  the  term  prescribed  by  law. 
Every  otticer  is,  in  contemplation  of  law,  regarded  as  a 
trustee,  charged  with  the  performance  of  certain  duties, 
the  execution  of  certain  trusts,  which  are  to  be  performed 
and  executed  in  accordance  with  the  several  constitutions 
of  our  system,  as  the  one  or  the  other  shall  be  applicable 
to  his  place  and  station,  or  to  the  duty  to  be  performed. 
Whenever  these  instruments  are  silent,  he  is  to  perform 
his  duty  in  harmony  and  in  symmetry  with  their  princi- 
ples, in  accordance  with  his  own  well  considered  judgment, 
aided  hy  the  suggestions  and  interests  of  his  constituents, 
aided  by  all  the  information  in  his  power,  not  forgetting 
his  duty  to  his  country,  to  himself 

The  science  of  government,  as  exhibited  in  the  institu- 
tions of  the  United  States,  may  be  defined  the  ai:)pli- 
cation  of  certain  principles  of  political  economy,  con- 
tained in  written  constitutions  established  by  the  people, 
to  the  practical  administration  of  the  business  and 
intercourse  of  life.  An  examination  of  this  science,  as 
imderstood  in  the  system  under  discussion,  will  lead  to 
several  prominent  conclusions. 

1.  The  people  are  and  should  be  the  source  of  all 
legitimate  political  power. 

2.  This  power  is  controlled  and  regulated  in  its  exer- 
cise and  application,  by  certain  written  constitutions, 
partaking  of  a  fixed  and  permanent  character,  subject  to 
change  and  amendment  by  the  peo2)le,  when  found 
inadequate  and  insufficient,  from  any  cause,  to  accomplish 
the  purpose  designed. 

3.  The  powers  of  government  are  political  trusts,  to 
be  exercised  for  the  benefit  and  protection  of  the  people, 
and  not  for  the  personal  advantage  or  aggrandizement  of 
those  who  exercise  them. 


THE    SCIENCE     OF     GOVERNMENT.  27 

4.  The  protection  of  private  right,  the  protection  of 
public  right,  which  regards  with  equal  favor  the  person, 
character,  and  property  of  every  citizen  or  member  of 
the  community,  is  the  only  legitimate  purpose  of  society. 

5.  The  means  of  a  substantial  and  general  education 
are  open  and  accessible  to  the  mass  of  the  people. 

The  adoption  of  the  federal  constitution,  by  which  the 
people  of  thirteen  independent  states  united  for  their 
common  defence,  protection,  and  welfare,  by  which  the 
political  principles  or  axioms  to  which  reference  has 
been  made  were  promulgated,  must  be  regarded  as  a  new 
era  in  the  science  of  political  economy,  as  the  commence- 
ment of  a  new  and  enlarged  scheme  for  the  civilization 
and  advancement  of  the  human  family.  Its  success,  its 
triumph,  or  its  defeat  will  be  promoted  by  your  action, 
by  your  fidelity  or  want  of  fidelity,  as  the  case  may  be. 
If  this  survey  be  accurate,  I  need  not  remind  you  that 
the  intelligence,  the  integrity  of  the  people,  must  be 
regarded  as  the  main  foundation  of  our  system.  Charters, 
constitutions,  and  theories  of  right,  of  liberty,  perfect  as 
they  may  be,  beautiful  as  any  production  of  the  human 
intellect  can  be,  will  be  unavailing  and  valueless  to  stay 
or  check  the  downward  course  of  a  degenerate  and  cor- 
ruj)t  people. 

Thus  far  in  our  history,  I  have  seen  no  evidence,  from 
which  to  infer  that  the  American  people  as  a  body  are 
forgetful  or  unworthy  of  the  position  which  they  occupy, 
of  the  duty  which  their  declarations  have  imjDOsed  upon 
them,  to  maintain  and  preserve  their  own  rights,  to  do 
no  wrong  to  the  rights  of  others;  in  a  word,  to  cultivate 
and  encourage  that  moral  courage  w^hich  knows  no  fear, 
except  the  fear  of  wrong.  I  mean  not  to  say,  that  our 
history  has  not  presented,  or  that  it  will  not  present 
angry  discussions,  that  we  have  not  seen,  shall  not  see, 
portions  of  the  people  from  time  to  time  maddened  for 


28  THE    SCIENCE    OF     GOVERNMENT. 

a  moment,  at  some  supposed  or  real  infringement  of  their 
rights.  Thus  far,  as  the  dews  and  mist  of  the  morning 
yield  to  the  power  and  brightness  of  the  noonday  sun, 
they  have  yielded  to  the  sober  second  thought  of  the 
people.  I  might  present  many  instances  of  the  moral 
courage  which  I  have  commended.  One  shall  suffice.  It 
was  exhibited  by  the  late  Chief  Justice  Marshall,  whose 
name  as  a  jurist  and  patriot  will  ever  be  remembered. 
Early  in  his  judicial  career,  he  presided  at  the  examina- 
tion and  trial  of  Aaron  Burr,  charged  with  treason.  The 
political  associations  and  predilections  of  the  judge  were 
adverse  to  those  of  the  party  accused.  The  charge  was 
of  a  character  to  excite  suspicion  and  prejudice.  The 
voice  of  popular  condemnation  was  audible  and  distinct 
throughout  the  country.  To  these  the  judge  yielded 
not,  but  administered  the  law  of  the  land  with  a  firm  and 
even  hand  as  he  found  it.  In  so  doing,  he  accomplished 
more  for  the  institutions  which  he  had  aided  to  establish, 
than  he  could  have  accomplished  by  directing  the  execu- 
tion of  an  hundred  traitors. 

I  have  presented  a  portraiture,  a  general  outline  of  the 
construction  of  our  sj'stem  of  government.  The  deduc- 
tions which  may  be  drawn  from  this  construction  of  a 
new  system  of  political  economy,  of  political  rights,  are 
important,  and  worthy  the  consideration  of  every  citizen. 
These  deductions  are  :  —  First.  Each  and  every  the  fede- 
ral and  the  state  government,  the  several  departments 
By  and  through  which  their  trusts  are  performed,  are 
limited.  Second.  The  popular  will,  the  voice  of  the  peo- 
ple, indirectly  operates  upon,  and,  within  certain  limits, 
controls  the  action  of  the  governments  and  of  their 
departments.  Third.  The  people  act  through  the  ballot ; 
their  will  is  not,  and  cannot,  if  I  may  so  say,  be  judicially 
ascertained,  or  rendered  available  in  any  other  mode. 
They  act  only  through  the  institutions  which  they  have 


THE     SCIENCE     OF     GOVERNMENT.  29 

created ;  their  right,  excluding  the  power  of  revohition, 
is  Hmited  in  its  exercise  by  the  capacity  of  the  institutions 
so  estabhshed. 

The  truth  of  these  positions,  the  machinery  by  which 
they, are  maintained,  the  result  upon  ourselves,  the  effect 
which  they  have  had  or  may  have  upon  the  institutions 
and  conduct  of  nations,  with  which  we  have  had  or  may 
have  relations  of  friendship  and  commerce,  will  be  illus- 
trated in  succeeding  lectures. 


LECTURE   II. 


THE  EXTERNAL  RIGHT  AND  DUTY  OF  THE  FEDERAL  GOVERNMENT,  AS  SHOWN  IN  ITS 
TREATY->LU£ING  POWER.  —  INTERVENTION.  —  NEUTRALITY  THE  POLICY  OF  THE 
UNITED  STATES.  —NEUTRAL  RIGHTS. 


The  adoption  of  the  federal  constitution  constituted  a 
new  era  in  the  science  of  poUtical  economy.  The  in- 
ternal character  of  the  institutions  of  every  country, 
although  having  no  extra-territorial  force,  must  and  do 
operate,  to  some  extent,  upon  the  character  of  the  institu- 
tions of  other  countries.  The  institutions  of  a  country 
are  the  indices,  the  result  of  the  character,  the  habits  of 
its  people.  This  influence  is  not  and  cannot  rightfully 
be  exercised  by  any  direct,  forcible  intervention  of  one 
country  in  the  affairs  of  another;  it  arises  from  their 
contracts,  association,  intercourse  with  each  other.  The 
right  of  suffrage,  the  elective  franchise,  recognized  in  all 
our  constitutions  as  the  right  of  the  citizen,  is  a  fact  or 
principle  calculated  to  excite  the  fears  and  doubts,  to 
disturb  the  hopes  of  foreign  governments  in  which  it  is 
not  recognized,  to  encourage  the  hopes  of  those  who 
exercise  it ;  in  fact,  it  exercises  a  moral  power  ujDon  the 
destiny  of  kingdoms,  of  people,  more  potent  and  effectual 
to  the  accomplishment  of  good  or  of  evil,  than  any  other 
single  fact  can  which  has  occurred  in  connection  with 
our   political    history.      The    most    essential,   the   most 


32  THE     SCIENCE     OF     GOVERNMENT. 

important  powers  and  duties  of  the  federal  government, 
are  external.  The  articles  of  confederation  adopted  by 
the  several  states  before  the  adoption  of  the  federal  con- 
stitution, Avere  su2:)posed  to  have  been  inadequate,  and 
insufficient  to  protect  the  country  and  its  rights  from 
foreign  interference  and  aggression.  A  number  of  dis- 
tinct states  or  sovereignties  could  not  so  readily  unite  in 
hostile  operations,  or  command  the  means  for  their  sup- 
port. The  interests  of  the  several  states  might  not  be 
influenced  in  the  same  manner,  or  to  the  same  extent  j 
hence  the  necessity  of  a  more  perfect  bond  of  amity,  a 
more  perfect  union,  so  as  thereby  to  repel  and  to  resist 
every  improper  intervention  with  our  domestic  aflairs 
from  abroad.  The  territorial  position  of  the  country, 
isolated  somewhat  from  other  countries,  favored  one  sys- 
tem so  fjir  as  foreign  relations  were  to  be  regarded.  Un- 
der a  national  government,  treaties,  the  law  and  usages 
of  nations,  must  be  expounded  in  the  same  manner ; 
whereas,  adjudications  on  the  same  questions  in  thirteen 
or  more  states,  or  in  three  or  more  confederacies,  might 
not,  and  probably  would  not.  be  consistent  with  each 
other.  A  diversity  of  opinion  would  result  from  the 
variety  of  independent  courts  and  judges  appointed  by 
different  governments,  operated  upon  and  influenced 
more  or  less  by  local  laws  and  interests,  by  peculiar  and 
conventional  modes  of  thought.  A  similar  difficulty  and 
cause  for  disquietude  would  arise  in  and  from  the  exist- 
ence of  thirteen  or  more  difi(3rent  treaties  made  by  the 
several  states  with  foreign  nations,  each  state  acting  for 
itself  upon  its  own  sovereignty.  Treaties  so  made  would 
not  contain  the  same  provisions,  and  our  intercourse  with 
other  nations  would  not  be  harmonious.  The  wisdom  of 
the  convention  in  committing  such  questions  to  the  juris- 
diction and  judgment  of  courts  appointed  by,  and  respon- 


THE    SCIENCE     OP     GOVERNMENT.  33 

sible  only  to   one  national  government  cannot  be  too 
mncli  commended.'^' 

It  was  also  reasonable  to  suppose,  that  the  habits  and 
pursuits  of  this  country,  judging  from  facts  then  existing, 
would  be  of  a  peaceful,  c[uiet  nature ;  that  the  political 
convulsions  which  European  institutions  had  frequently 
sustained  might  be  avoided.  From  these  and  similar 
considerations,  which  will  readily  occur  from  your  reflec- 
tion upon  the  subject,  the  foreign  relations  of  the  country, 
including  the  power  to  make  and  construe  treaties,  were 
confided  to  the  federal  government.  Under  the  articles 
of  confederation,  the  sole  and  exclusive  right  and  power 
of  determining  on  peace  and  war  was  vested  in  the 
United  States,  in  congress  assembled,  except  in  certain 
specified  cases  of  supposed  imminent  danger,  which  would 
not  admit  of  delay  until  the  United  States  in  congress 
assembled  could  be  consulted ;  in  such  case,  the  state  in 
danger  was  authorized  to  act  upon  its  own  motion  and 
responsibility.  The  power  of  entering  into  treaties  and 
alliances,  under  certain  limitations  of  power  resulting  from 
the  legislative  power  of  the  several  states,  was  also  con- 
ferred upon  the  United  States,  in  congress  assembled.f 
Under  the  federal  constitution  the  treaty-making  power 
is  not  subject  to  the  same  disabilities,  although  it  is  limi- 
ted, and,  in  some  emergencies,  may  be  liable  to  difficulty 
and  embarrassment.  By  this  instrument,  the  power  to 
make  treaties  is  vested  in  the  president  of  the  United 
States,  acting  by  and  with  the  advice  and  consent  of  the 
senate,  two  thirds  of  the  senators  present  concurring.^ 
The  adoption  of  this  instrument  was  advocated  by  many 
distinguished  and  patriotic  individuals,  who,  subsequent  to 


*  The  Federalist,  No.  3. 

t   Articles  of  Confederation,  arts.  vi.  and  xi. 

X   Constitution  of  United  States,  art.  ii,  sec.  2. 

5 


34  THE     SCIENCE     OF     GOVERNMENT. 

its  adoption,  entertained  views  different  from  each  other 
in  relation  to  the  extent  and  constrnction  of  its  powers. 
John  Jay  said,  upon  the  subject  under  consideration, 
"  The  power  of  making  treaties  is  an  important  one,  es- 
pecially as  it  relates  to  war,  peace,  and  commerce ;  and 
it  should  not  be  delegated  but  in  such  a  mode,  and  with 
such  precautions  as  will  ailbrd  the  highest  security,  that 
it  will  be  exercised  by  men  the  best  qualified  for  the  pur- 
pose, and  in  the  manner  most  conducive  to  the  public 
good.  The  convention  appear  to  have  been  attentive  to 
both  these  points ;  they  have  directed  the  president  to 
be  chosen  by  select  bodies  of  electors,  to  be  deputed  by 
the  people  for  that  express  purpose  ;  and  they  have  com- 
mitted the  appointment  of  senators  to  the  state  legisla- 
tures. This  mode  has,  in  such  cases,  vastly  the  advantage 
of  elections  by  the  people  in  their  collective  capacity, 
where  the  activity  of  party  zeal  taking  advantage  of  the 
supineness,  the  ignorance,  the  hopes  and  fears  of  the 
unwary  and  interested,  often  places  men  in  office  by  the 
votes  of  a  small  proportion  of  the  electors. 

As  the  select  assemblies  for  choosing  the  president,  as 
well  as  the  state  legislatures  who  appoint  the  senators, 
will,  in  general,  be  composed  of  the  most  enlightened  and 
respectable  citizens,  there  is  reason  to  presume  that  their 
attention  and  their  votes  will  be  directed  to  those  men 
only,  who  have  become  the  most  distinguished  by  their 
abilities  and  virtue,  and  in  whom  the  people  perceive  just 
grounds  for  confidence.  The  constitution  manifests  very 
particular  attention  to  this  object.'==  This  course  of  rea- 
soning by  Mr.  Jay  was  approved  by  some,  disapproved 
by  others ;  it  was  adopted  by  the  people,  by  their  ratifica- 
tion of  the  instrument.  The  treaty-making  power  is 
indispensable  to  the  due  exercise  of  national  sovereignty ; 


*  The  Federalist,  No.  64. 


THE     SCIENCE     OF     GOVERNMENT.  35 

that  it  should  belong  to  the  national  government  would 
seem  to  be  irresistibly  established  by  every  argument 
deduced  from  experience,  from  public  policy,  and  a  close 
survey  of  the  objects  of  government.  It  embraces  all 
sorts  of  treaties  for  peace  or  war,  for  commerce  or  terri- 
tory, for  alliance  or  succors,  for  indemnity,  for  injuries  or 
payment  of  debts,  for  the  recognition  or  enforcement  of 
principles  of  public  law,  and  for  any  other  purposes 
which  the  policy  or  interests  of  independent  sovereigns 
may  dictate  in  their  intercourse  with  each  other.*  A 
treaty,  made  and  approved  in  this  form  by  the  president, 
with  the  concurrence  of  the  senate,  is  regarded  as  obliga- 
tory upon  the  nation,  if  it  does  no  violence  to  the  con- 
stitution. Notwithstanding  the  clear  language  in  which 
this  power  is  expressed,  the  house  of  representatives  on 
one  occasion  claimed  a  right  to  participate  in  some  way, 
to  some  extent,  in  the  exercise  of  the  power,  to  be  con- 
sulted and  advised  with  in  relation  to  treaties.  This  sup- 
posed right  was  resisted  by  President  Washington,  and  the 
grounds  of  his  objection  to  the  claim  so  set  up,  were  ably 
and  satisfactorily  stated  by  him  in  a  message  to  the  house 
of  representatives,  presented  March  30th,  1796,  in  which, 
after  discussing  the  general  reasons  applicable  to  the  sub- 
ject, he  says:  —  "It  is  a  foct  declared  by  the  general 
convention,  and  universally  understood,  that  the  constitu- 
tion of  the  United  States  was  the  result  of  a  spirit  of 
amity  and  mutual  concession.  And  it  is  well  known,  that 
under  this  influence  the  smaller  states  were  admitted  to 
an  equal  representation  in  the  senate  with  the  larger 
states,  and  this  branch  of  the  government  was  invested 
with  great  powers,  for  on  the  equal  participation  of  these 
powers  the  sovereignty  and  political  safety  of  the  smaller 


*  Story  on  Con.  U.  S.,  book  3,  ch.  37,  sections  777,  778. 


36  THE     SCIENCE     OF     GOVERNMENT. 

states  were  deemed  essentially  to  depend.===  The  power 
to  make  treaties,  in  the  language  by  which  it  is  conferred, 
is  general  and  unrestrained ;  it  is  not,  however,  unlimited  ; 
the  power  is  not  to  be  so  construed  or  exercised  as  to 
destroy  the  fundamental  law  of  the  state.  A  power  given 
by  the  constitution  cannot  be  construed  to  authorize  a 
destruction  of  other  powers  given  in  the  same  instrument. 
It  must  be  construed,  therefore,  in  subordination  to  it,  and 
cannot  supersede  or  interfere  with  any  other  of  its  fun- 
damental provisions.  Each  is  equally  obligatory  and  of 
paramount  authority  within  its  scope,  and  no  one  em- 
braces a  right  to  annihilate  any  other.  A  treaty  to 
change  the  organization  of  the  government,  to  annihilate 
its  sovereignty,  to  overturn  its  republican  form,  or  to 
deprive  it  of  its  constitutional  powers,  would  be  void, 
because  it  would  destroy,  what  it  was  designed  merely  to 
fulfil,  the  will  of  the  people."  f  A  treaty  is  frequently 
designated  a  law,  and  is  regarded  as  the  supreme  law  of 
the  land.  It  is  more  accurate  to  say  it  is  a  contract,  hav- 
ing during  its  continuance  the  force  and  effect  of  a  law, 
supreme  in  its  operation,  unless  in  conflict  with  the  con- 
stitution of  the  United  States.  Practically,  the  treaty- 
making  power  is  well  guarded,  and  so  far  has  been 
exercised  without  difficulty ;  there  is,  however,  a  manifest 
defect  in  its  construction.  Cases  may  arise,  in  which  it 
may  be  provided  in  a  treaty,  that  the  United  States  shall 
pay  to  the  other  contracting  party  a  sum  of  money.  In 
such  event,  the  executive,  if  occasion  should  require, 
miyht  pomhlij  assume  to  ^Kt//,  if  the  means  in  the  trea- 
sury should  be  adequate ;  otherwise  the  payment  would 
depend  upon  the  action  of  congress,  of  which  the  house 
of  representatives  constitutes  a  part,  and  might  be  defeated. 


*  Elliot,  Diplomatic  Code,  vol.  ii.  p.  520. 

t   Story  on  Con.  U.  S.,  book  3,cli.  37,  sections  777,  778. 


THE     SCIENCE     OF     GOVERNMENT.  37 

This  is  a  possible,  but  not  a  probable  ground  of  future 
e  mbarrassment. 

After  the  treaty  of  1794  with  Great  Britain,  which  had 
been  negotiated  by  John  Jay,  had  been  approved  by  the 
senate,  the  house  of  representatives  claimed  the  right  to 
intervene,  and  to  reject  or  carry  it  into  effect  at  their 
election ;  a  severe  and  angry  debate  was  had,  which  re- 
sulted in  a  renunciation  of  the  power  claimed  by  a  single 
vote.  Treaties  are,  by  some  waiters,  designated  as  the 
laws  of  nations.  They  are  not ;  they  are  merely  obliga- 
tions or  contracts  binding  upon  the  parties  thereto,  and 
have  no  force  upon  nations  not  parties  ;  they  may  be  in 
accordance  with  the  law  of  nations,  or  they  may  not,  in- 
asmuch as  the  contracting  parties  may  make,  for  their 
own  guidance  and  intercourse,  such  provisions  as  they  may 
think  expedient.  Treaties  may  be  referred  to  as  having 
more  or  less  tendency  to  show,  what  the  law  of  nations 
upon  a  particular  subject  may  be.  A  particular  provision 
or  stipulation,  or  an  acknowledgment  and  assertion  of  a 
principle,  may  be  inserted  in  treaties  between  different 
nations,  so  often  and  for  such  period  or  periods  of  time, 
as  finally  to  be  regarded  as  an  admitted  or  well  estab- 
lished usage  among  nations,  and  from  such  continued  usage 
may  have  the  force  of  a  law  of  nations.  The  law  of  na- 
tions has,  undoubtedly,  been  influenced  by  the  science  of 
government,  as  exhibited  in  the  institutions  of  the  United 
States.  It  has  been  influenced  by  the  liberal  political 
privileges  and  principles  which  we  enjoy  and  profess. 
The  conduct  of  other  nations,  the  character  of  their  citi- 
zens, and  their  ideas  of  right  and  wrong,  of  abstract  jus- 
tice have,  no  doubt,  been  influenced  by  our  intercourse. 
A  remarkable  instance  may  be  found  in  a  treaty  made  by 
the  United  States  with  the  Dey  of  Algiers  in  1815,  in 
which  it  is  provided,  that "  the  consul  of  the  United  States 
of  America  shall  not  be  responsible  for  the  debts  con- 


38  THK     SCIENCE     OF    GOVERNMENT. 

tractcd  l)y  citizens  of  his  own  nation,  unless  he  previously 
gives  written  o])li<,'ations  so  to  do."  In  the  same  treaty, 
it  is  provided,  "  If  in  the  course  of  events  a  war  should 
break  out  between  the  two  nations,  the  prisoners  cap- 
tured by  either  party  shall  not  be  made  slaves,  they  shall 
not  be  forced  to  hard  labor  or  other  confinement  than  such 
as  may  be  necessary  to  secure  their  safe  keeping  until  ex- 
chan^^ed."  This  treaty  also  contains  a  declaration  of  the 
principle,  by  which  we  profess,  and  always  have  professed 
to  regulate  our  intercourse  with  other  communities.  It 
is  in  these  words :  "  As  the  government  of  the  United 
States  of  America  has,  in  itself,  no  character  of  enmity 
against  the  laws,  religion,  or  tranquillity  of  any  nation, 
and  as  the  said  states  have  never  entered  into  any  volun- 
tary war  or  act  of  hostility,  except  in  defence  of  their 
just  rights  on  the  high  seas,  it  is  declared  by  the  contract- 
ing parties,  that  no  pretext  arising  from  religious  opinions 
shall  ever  produce  an  interruption  of  the  harmony  be- 
tween the  two  nations."  '•''■  A  proposition  to  the  English 
government  to  insert  a  provision  that  our  consuls  should 
not  be  required  to  pay  the  debts  of  American  citizens, 
would  be  regarded  as  uncalled  for ;  in  a  negotiation  with 
the  Dey  of  Algiers  it  might  be  of  great  import.  The 
fact  that  such  a  provision  was  inserted  in  the  treaty  to 
which  reference  has  been  made,  as  had  been  a  similar 
provision  in  an  earlier  treaty  with  the  same  party,  exhi- 
bits the  state  of  civilization  of  the  party  against  whom 
such  a  provision  was  required,  and  it  cannot  be  doubted, 
that  ultimately  it  must  produce  in  such  party  a  higher 
and  more  elevated  standard  of  right  and  morality.  This 
treaty  exhibits  also,  on  our  part,  skilful  diplomacy  in 
yielding  our  apparent  regard  for  the  peculiar  religious  views 
of  the  other  contracting  party ;  it  also  exhibits,  on  our  part. 


♦  Elliot,  Diplomatic  Code,  vol.  i.  p.  492,  arts.  13,  15,  17. 


THE     SCIENCE     OF     GOVERNMENT.  39 

an  acknowledgment,  that  the  religion  and  internal  ar- 
rangements of  a  nation,  are  matters  peculiarly  within  its 
control.  In  our  treaties,  in  our  intercourse  with  foreign 
nations,  the  existence  of  the  elective  franchise  has  been 
more  or  less  effective.  The  treaty-making  power,  as  1  have 
shown,  is  limited ;  it  is  indirectly  reached  by  the  ballot  of 
our  citizens.  Foreign  nations  which  negotiate  with  the 
United  States,  must  do  so  subject  to  this  limitation  and 
capacity  of  our  system  -,  in  that  way  the  system  operates 
upon  them. 

In  this  way,  and  by  our  example,  by  our  fidelity  to  our 
professions,  and  in  no  other  way,  we  can  rightfully  influ- 
ence, or  interfere  wdth,  the  political  policy  or  institutions 
of  other  countries.  An  individual  cannot  with  propriety 
interfere  with  the  rights  of  another.  Upon  the  same 
principle,  a  nation  cannot  interfere  with  the  rights  of 
another  nation ;  each  must  use  its  own  rights,  exercise 
its  own  sovereignty  within  its  own  domain,  and  without 
prejudice  to  other  sovereignties.  This  is  a  fact  or  princi- 
ple to  which  the  United  States  have  always  professed  ad- 
herence. An  adherence  to  it  is  essential  to  our  existence ; 
a  violation  of  the  principle  would  be  a  violation  of  our 
system,  which,  as  I  have  endeavored  to  show,  is  limited  in 
all  its  parts  and  departments,  no  one  of  which  extends  to 
the  internal  affairs  of  any  country  except  our  own.  The 
most  recent,  most  able  and  accurate  writer  upon  interna- 
tional law  says :  "  No  state  has  any  right  to  intermeddle 
in  the  internal  affairs  of  another."  This  rule  is  a  conse- 
quence of  the  legal  equality  and  exclusive  jurisdiction  of 
independent  states.  A  right  of  interference  cannot  be 
claimed  by  an  ally,  much  less  can  it  be  claimed  by  a 
stranger.  International  rights  and  duties  are  reciprocal. 
No  nation  is  entitled  to  exercise  any  right  which  it  is  not 
bound  to  allow  under  the  like  circumstances ;  and  as  no 
powerful  state  would  allow  a  feeble  neighbor  to  inter- 


40  THK     Sl'lEXCE     OF     GOVEKNMENT. 

meddle  in  its  domestic  affairs,  so  neither  has  a  powerful 
state  a  right  to  intermeddle  in  the  domestic  affairs  of  a 
feeble  neighbor.  The  perfect  equality  and  entire  inde- 
pendence of  all  distinct  states,  is  a  principle  of  public  law 
generally  recognized  as  fundamental.  Relative  magni- 
tude creates  no  distinction  of  right ;  relative  imbecility, 
Avhether  permanent  or  casual,  gives  no  additional  right  to 
the  more  powerful  neighbor,  and  any  advantage  seized  on 
that  ground  is  mere  usurpation.  This  is  the  great  foun- 
dation of  public  law,  which  it  mainly  concerns  the  peace 
of  mankind,  both  in  their  public  and  private  capacities,  to 
preserve  inviolate.  The  exceptions  which  have  been  at- 
tempted to  be  ingrafted  upon  this  principle  are  wholly 
inadmissible.  Even  such  interventions  as  are  humane 
and  disinterested  in  their  purpose,  are  illegal.  Though 
they  may  be  beneficial  in  act,  they  are  pernicious  in 
example  ;  for  charity  may  be  made  a  cloak  for  ambition, 
and  a  state  is  no  more  justified  than  a  private  person  in 
doing  evil  that  good  may  come.  Though  its  charity 
be  genuine,  a  nation  has  no  right  to  impose  benefits  upon 
its  neighbors  by  force,  or  to  gratify  its  humanity  at  the 
expense  of  their  independence.  To  procure  an  eminent 
good  by  means  that  are  unlawful,  is  as  little  consonant  to 
public  justice  as  to  private  morality.  A  nation  is  not 
justified  in  assuming  rights  that  do  not  belong  to  her, 
merely  because  she  means  to  apply  them  to  a  laudable 
purpose  ;  nor  in  setting  out  on  a  moral  crusade  of  convert- 
ing other  nations  by  acts  of  unlawful  force.==' 

The  views  which  have  been  presented,  and  the  char- 
acter of  the  treaty-making  power,  will  readily  suggest 
to  your  minds  the  position  which  the  United  States 
should  occupy  in  their  relation  to,  and  with  other  coun- 
tries.   The  position  to  which  their  system  of  government 


•  Wildman  on  Interaational  Law,  vol.  i.  pp.  4  7,  48,  49. 


THE     SCIENCE     OF     GOVERNMENT.  41 

and  its  principles,  distinctly  point.  That  position  is,  in 
time  of  peace,  non-intervention ;  in  time  of  war,  in  which 
the  United  States  are  not  involved,  it  is  neutrality.  In 
1793,  President  Washington  made  a  public  proclamation, 
copies  of  which  were  sent  to  all  foreign  courts  with 
which  we  had  intercourse,  in  which  he  announced  that 
the  course  of  this  country  would  be  one  of  strict  neutral- 
ity in  the  controversy  then  subsisting  between  England 
and  France  ;  that  the  duty  and  interest  of  the  United 
States  required  that  they  should,  and  that  they  would 
with  sincerity  and  good  faith,  adopt  and  pursue  a  conduct 
friendly  and  impartial  towards  the  belligerent  powers.* 
This  proclamation  was  condemned  and  disapproved  in  a 
series  of  letters  written  by  James  Madison,  upon  the 
ground  that  it  was  an  excess  of  executive  authority  ;  that 
it  was  in  its  position  a  violation  of  certain  treaty  stipula- 
tions, which,  it  was  averred,  this  country  had  entered  into 
with  France.  On  the  other  hand,  it  was  approved  and 
sustained  in  several  papers  written  by  Alexander  Hamil- 
ton, who  denied  the  supposed  excess  of  executive  author- 
ity, and  contended  that  it  was  not  a  violation  of  any  obli- 
gations which  had  been  made  by  this  country.  Whether 
the  one  or  the  other  of  these  eminent  and  able  men 
were  correct  in  their  course  of  reasoning,  I  do  not  in- 
quire ;  neither  of  them  denied  the  principle  of  it,  so  far 
as  it  stated  the  position  of  the  country  to  be  one  of  neu- 
trality, and  rightfully  so,  independent  of  any  supposed 
treaty  obligation.  In  1794,  when  Mr.  Monroe  succeeded 
Mr.  Morris  as  minister  of  this  country  to  the  republic  of 
France,  the  principles  of  the  proclamation  were  reite- 
rated.f  They  were  sustained  by  the  country  in  its  offi- 
cial intercourse,  and  by  an  adherence  to  the  policy  which 
the  executive  had  adopted,  although  it  is  true  they  were 

*  Elliot,  Diplomatic  Code,  vol.  ii.  p.  512.  f  Ibid.  vol.  ii.  p.  515. 

6 


42  Tin:   science   of   government. 

assailed  by  a  considerable  portion  of  the  press  and  of  the 
peojile.  It  is  now  conceded,  that  the  policy  of  this  coun- 
tiy  disclosed  in  its  system,  in  the  interests  and  haljits  of 
the  people,  is  tliat  of  neutrality.  An  effort,  however,  has 
constantly  been  made  in  this  country  to  enlarge  the 
rights  of  a  neutral  nation,  which  eftbrts,  have  no  doubt, 
to  some  extent,  been  successful ;  these  rights  have  been 
the  subject  of  discussion  and  negotiation,  and  will  no 
doubt,  hereafter,  be  the  subject  of  discussion  and  negotia- 
tion. The  most  prominent  principles  of  international 
law,  applicable  to  the  interests  and  rights  of  a  neutral 
nation,  are  :  First.  The  supposed  right  of  a  neutral  nation 
to  carry  in  its  ships  the  goods  of  a  belligerent,  and  there- 
by during  their  transportation  to  afford  to  the  goods  of 
the  belligerent  an  immunity  and  exemption  from  capture ; 
in  other  words,  that  free  ships  make  free  goods.  ^Second. 
The  right  of  blockade.  Third.  The  right  of  a  neutral  na- 
tion, in  time  of  war,  to  engage  in  the  coasting  or  other 
trade  of  a  belligerent,  in  which  the  neutral  is  not  allowed 
to  participate  in  time  of  peace.  Fourlh.  The  right  of 
search. 

It  is  not  my  intention  to  read  a  treatise  upon  these 
questions,  or  to  consider  them  more  extensively  than  is 
necessary  to  exhibit  our  influence  as  a  country  upon 
them.  They  are  subjects  upon  which  the  pride  of  a  free 
and  independent  people  may  be  easily  excited  by  mere 
politicians.  A  nation  whose  habits,  position,  and  system, 
are  adverse  to  war  and  its  incidents ;  whose  interests  can 
be  more  eflectually  secured  by  a  continued  state  of  peace, 
will  naturally  advocate  an  enlargement  of  the  privileges 
and  immunities  which  appertain  to  a  state  of  neutrality. 
In  accordance  with  such  an  inclination,  the  United  States 
have  always  endeavored,  in  its  negotiations,  to  erdarge 
them  ;  in  all  particulars  in  which  the  rights  of  a  neutral 
could  be  regarded  as  defined  and  well  estabhshed,  in  and 


THE    SCIENCE     OF     GOVERNMENT.  43 

by  the  law  of  nations,  the  United  States  have  not  assented 
to  or  suffered  any  diminution  of  them  to  be  made.  The 
decided  attitude  of  this  country  upon  this  subject  has, 
without  doubt,  exerted  a  constant  and  perceptible  influ- 
ence in  favor  of  neutral  rights.  The  position  that  free 
ships  make  free  goods,  was  a  subject  of  discussion  and  of 
treaty  stipulation  before  our  government  existed  ;  it  had 
not,  however,  the  same  prominence  which  it  has  since 
acquired.  Great  Britain  has  inserted  in  several  of  its 
treaties  with  France,  with  Spain,  and  other  powers,  a  pro- 
vision yielding  the  right  for  the  time  being ;  but  she 
never  ceased  to  deny  the  position,  when  set  up  as  a  mat- 
ter of  right ;  has  never  assented  to  such  provision  in  any 
treaty  with  this  country  which  I  have  examined.  The 
United  States  have  entered  into  treaties  with  fifteen  dif- 
ferent powers,  in  which  this  right  has  been  inserted.  The 
first  in  time  and  in  importance,  is  the  treaty  which  was 
made  with  France,  in  February,  1778,  before  our  indepen- 
dence was  acknowledged  by  Great  Britain.  In  this  treaty 
it  is  provided,  "  that  free  ships  give  a  freedom  to  goods, 
and  that  every  thing  shall  be  deemed  free  and  exempt, 
which  shall  be  found  on  board  the  ships  belonging  to  the 
subjects  of  either  of  the  confederates,  although  the  whole 
lading  or  any  part  thereof  should  appertain  to  the 
enemies  of  either,  contraband  goods  being  always  ex- 
cepted." * 

This  position  in  this  treaty  had  no  little  agency  in  a 
declaration  made  by  the  empress  of  Russia,  in  February, 
1780,  by  and  from  which  originated  "the  armed  neutral- 
ity." This  declaration  or  manifesto  contained  several 
articles,  one  of  which  is,  "  that  the  goods  belonging  to  the 
subjects  of  the  powers  at  war,  shall  be  free  in  neutral 
vessels,  except  contraband  articles."  f     Prussia,  Austria, 


*  Stat,  at  Large,  U.  S.,  vol.  viii.  24,  art.  23. 
t  Wheaton,  Law  of  Nations,  pp.  295-297,  303. 


44  THK     SCIENCE     OF     GOVERNMENT. 

Portugal,  and  the  United  States,  the  latter  acting  by  an 
ordinance  of  congress,  imder  the  confederation,  acceded 
to  the  principles  of  this  armed  neutrality.  In  17*.'-4.  the 
United  States  made  a  treaty  with  Great  Britain  which 
contained  an  article  of  a  directly  opposite  character, 
which  produced  a  hostile  state  of  feeling  on  the  part 
of  France,  manifested  in  its  diplomatic  correspondence, 
and  by  its  seizures  of  the  property  of  American  citizens. 
This  unfriendly  disposition  was  strengthened  by  the 
opinion  of  France,  that  the  proclamation  of  neutrality, 
made  by  AYashington,  to  which  reference  has  been  made, 
was  a  violation  of  a  treaty  obligation,  on  our  part,  to 
assist  the  republic  of  France,  according  to  our  ability,  in 
any  conflict  which  it  might  have  with  England,  provided 
such  conflict  should  arise  durino;  the  continuance  of  the 
war  between  Great  Britain  and  this  country.  It  was  also 
manifested  by  two  decrees  made  by  "  the  Directory  of 
France,"  in  one  of  which  it  is  declared  that  the  United 
States  had  renounced,  by  their  treaty  with  Great  Britain, 
the  privileges  which  it  had  previously  enjoyed  under  its 
treaty  of  1778  with  France,  and  consequently,  that  enemy 
property  taken  by  French  cruisers  from  on  board  Ameri- 
can vessels  would  be  regarded  as  a  legal  prize.  In  the 
other  it  is  declared,  that  all  neutral  vessels  laden  with  pro- 
perty of  an  enemy  would  be  liable  to  capture  and  confis- 
cation.='' 

These  decrees  were  violations  of  the  law  of  nations, 
and  produced  a  state  of  quasi  war  between  this  country 
and  France,  which  continued  until  the  30th  of  September, 
1800,  at  which  time  a  convention  was  entered  into  be- 
tween the  United  States  and  the  First  Consul  of  France. 
By  the  terms  of  this  convention,  it  was  agreed  that  free 
ships  should  make  free  goods ;  that  the  citizens  of  either 
country  might  engage  in  the  coasting  trade  of  the  enemy 


*  Wheaton,  Law  of  Nations,  pp.  389,  390. 


THE    SCIENCE     OF     GOVERNMENT.  45 

of  the  other  ;  that  certain  ships  and  goods  which  had 
been  captured  should  be  restored.  This  convention  was 
followed  by  two  others  between  the  same  parties,  by  one 
of  which  Louisiana  was  ceded  to  the  United  States,  and 
thereby  the  early  friendship  and  harmony  of  the  two 
countries  restored.^-'  Before  these  conventions  were  con- 
cluded, and  in  reply  to  the  accusations  of  the  republic  of 
France  and  in  vindication  of  the  course  of  the  United 
States,  Marshall,  Pinckney,  and  Gerry,  American  envoys 
at  Paris,  prepared  an  able  state  paper,  in  which  it  is  said, 
"  By  the  law  of  nations,  free  ships  do  not  make  free  goods, 
nor  enemy  ships,  enemy  goods."  The  stipulation  in  the 
treaty  of  1778  with  France,  formed  an  exception  to  a 
general  rule,  which  retains  its  obligation  in  all  cases  where 
not  changed  by  compact.  That  the  treaty  of  1794  with 
Great  Britain  did  not  concede  a  new  right,  but  only 
mitigated  the  practical  exercise  of  a  right  already  ac- 
knowledged to  exist.  The  desire  of  establishing  univer- 
sally the  principle,  that  neutral  ships  should  make  neutral 
goods,  was  felt  by  no  nation  more  strongly  than  by  the 
United  States.  It  was  an  object  which  they  kept  in  view, 
and  would  pursue  by  such  means  as  their  judgment  might 
dictate.  But  the  wish  to  establish  a  principle,  was  essen- 
tially different  from  an  assumption  that  it  is  already 
established.  However  solicitous  America  might  be  to 
pursue  all  proper  means  tending  to  obtain  the  concession 
of  this  principle,  by  any  or  all  of  the  maritime  powers  of 
Europe,  she  had  never  conceived  the  idea  of  obtaining 
that  consent  by  force.  The  United  States  would  only 
arm  to  defend  their  own  rights ;  neither  their  policy  nor 
their  interests,  permitted  them  to  arm  in  order  to  compel 
a  surrender  of  the  rights  of  others.-j-     AVhether  the  doc- 


*  Elliot,  Diplomatic  Code,  vol.  i.  pp.  84,  92,  94,  109-116. 
t  Wheaton,  Law  of  Nations,  p.  388. 


40  THE    SCIENCE     OF     fiOVERNMENT. 

trine  "  that  free  ships  make  free  goods,"  as  a  matter  of 
rio-ht,  as  a  principle  of  international  law,  is  to  be  sustained, 
may  be  determined  by  an  examination  of  the  relative 
rights  of  the  nations  at  war,  in  connection  with  each 
other  as  belligerents,  and  in  connection  with  nations  not 
engaged  in  the  controversy.  When  two  powers  are  at 
war,  they  have  a  right,  between  themselves,  to  make 
prizes  of  the  ships,  goods,  and  efifects  of  each  other ;  this 
is  an  undoubted  principle  of  international  law.  Other 
nations  occupying  a  neutral  position  have  no  right  to  say 
to  those  engaged  in  the  conflict,  that  belligerents  shall 
not,  between  themselves,  exercise  the  immunities  growing 
out  of  their  relation  to  each  other.  As  a  general  propo- 
sition it  is  equally  clear,  "  that  a  neutral  nation  is  not  to 
be  molested  or  impeded,  in  the  exercise  of  its  rights  by 
its  neighbors,  who  are  at  war  with  each  other."  Here 
then  are,  apparently,  rights  existing  in  different  parties ;  a 
competition  of  right  which  mayT??>t  be  fully  exercised, 
unless  the  one  or  the  other  shall,  to  some  extent,  yield 
its  pretensions.  How  are  they,  upon  abstract  principle, 
to  be  reconciled  or  managed  ?  When  an  individual  enters 
into  society,  or  finds  himself  a  member  of  it,  he  yields  a 
portion  of  his  natural  or  supposed  rights  to  the  exigen- 
cies and  to  the  uses  of  the  association ;  he  submits  and 
agrees  to  use  his  privileges  and  immunities,  so  as  not  to 
destroy  or  impair  the  reasonable  and  lawful  immunities 
of  another.  Nations,  in  their  intercourse  with  each  other, 
which  intercourse  is  not  a  matter  of  original,  positive 
right,  in  the  one  or  in  the  other,  but  matter  of  comity, 
must  in  like  manner  act  under  an  imi^lied  understanding 
not  to  impair  the  rights  of  each  other ;  they  are  bound 
to  regard  the  status  or  condition  of  those  with  whom  they 
traffic.  It  would  seem,  therefore,  to  be  reasonable  that 
the  right  of  a  beUigerent  to   seize  the  property  of  his 


THE    SCIENCE     OF     GOVERNMENT.  47 

enemy  upon  the  high  seas,  is  paramount  to  any  supposed 
right  of  a  neutral,  to  give  such  property  an  exemption 
or  immunity  from  capture,  that  free  ships  do  not  make  free 
goods.  This  right  of  capture  must  be  exercised  by  the 
belligerent  upon  his  own  territory,  upon  the  territory  of 
his  enemy,  or  upon  the  high  seas,  which  is  territory  com- 
mon to  all  the  world ;  he  cannot  enter  the  territory  of  a 
neutral,  which,  by  the  principles  of  international  law  ex- 
tends the  distance  of  gunshot  from  the  shore,  generally 
computed  by  consent  of  all  nations  as  a  marine  league. 
This  results  from  the  well  established  position,  that  the 
jurisdiction  of  a  nation  wdthin  its  own  territory  is  exclu- 
sive and  absolute ;  it  is  susceptible  of  no  limitation  not 
imposed  by  itself  Any  restriction  upon  it,  deriving  vali- 
dity from  an  external  source,  would  imj)ly  a  diminution 
of  its  sovereignty  to  the  extent  of  the  restriction,  and  an 
investment  of  that  sovereignty  to  the  same  extent  in 
that  power  which  could  impose  such  restriction.  All  ex- 
ceptions, therefore,  to  the  full  and  complete  power  of  a 
nation  within  its  own  territories,  must  be  traced  up  to 
the  consent  of  the  nation  itself  They  can  flow  from  no 
other  legitimate  source.  The  world,  being  composed  of 
distinct  sovereignties  possessing  equal  rights  and  equal 
independence,  w^hose  mutual  benefit  is  promoted  by  in- 
tercourse with  each  other,  and  by  an  interchange  of  those 
good  ofiices  which  humanity  dictates  and  its  wants  re- 
quire, all  sovereigns  have  consented  to  a  relaxation  in 
practice,  in  cases  under  peculiar  circumstances,  of  that 
absolute  and  complete  jurisdiction  within  their  respective 
territories,  which  sovereignty  confers.* 

It  is  therefore  evident,  that  the  intercourse  of  nations 
independent  of  compact,  is  merely  a  matter  of  comity. 

*  Schooner  Exchange  v.  McFadden,  7  Cranch  Eep.  116. 


48  THE    SCIENCE     OF     GOVERNMENT. 

The  Avriters  upon  international  law  are  not  entirely 
agreed  upon  the  question  under  consideration.  The 
ablest,  the  earliest,  and  the  latest  writers  are  clearly  in 
favor  of  the  position,  that  free  ships  do  not  make  free 
goods.  Upon  the  same  princiiDle,  which  conduces  to  this 
result,  it  follows  that  the  goods  of  a  neutral  on  board  the 
ship  of  an  encm}',  are  not,  because  so  found,  liable  to  sei- 
zure, although  goods  in  such  condition  are,  in  the  first 
instance,  presumed  to  be  enemy  property,  and  the  neutral 
claimant  must  prove  his  title,  and  show  that  the  shipment 
was  made  for  his  own  legal  purposes,  and  not  to  aid  or 
facilitate  the  hostile  operations  of  the  enemy.  The  doc- 
trine upon  this  subject  has  been  recognized  by  the 
supreme  court  of  the  United  States  in  conformity  with 
what  is  supposed  to  be  the  weight  of  authority  upon 
the  subject,  and  this  is  to  be  regarded  as  decisive,  so  far 
as  the  United  States  are  concerned.  In  the  case  to 
which  reference  is  made,  the  court  say:  "The  rule 
that  the  goods  of  an  enemy  found  in  the  vessel  of  a 
friend  are  prize  of  war,  and  that  the  goods  of  a  friend 
found  in  the  vessel  of  an  enemy  are  to  be  restored,  is 
believed  to  be  a  part  of  the  original  law  of  nations,  as 
generally,  perhaps  universally,  acknowledged.  Certainly 
it  has  been  fully  and  unequivocally  recognized  by  the 
United  States.  This  rule  is  founded  upon  the  plain  and 
intelligible  principle,  that  war  gives  a  right  to  capture  the 
goods  of  an  enemy,  but  gives  no  right  to  capture  the 
goods  of  a  friend.  In  the  practical  application  of  this 
principle  so  as  to  form  the  rule,  the  propositions  that  the 
neutral  flag  constitutes  no  protection  to  enemy  property, 
and  that  the  belligerent  flag  communicates  no  hostile 
character  to  neutral  property,  are  necessarily  admitted. 
The  character  of  the  property,  taken  distinctly  and  sepa- 
rately from  all  otlier  considerations,  depends  in  no  degree 


THE     SCIENCE     OF     GOVERNMENT.  49 

upon  the  character  of  the  vehicle  in  which  it  is  found.* 
A  neutral  nation  has  no  reason  to  complain  of  this  posi- 
tion, because  a  neutral  ship,  having  on  board  an  enemy 
cargo,  if  seized  and  carried  in  for  the  purpose  of  confis- 
cating the  cargo,  is  entitled  to  freight  from  the  captor, 
and  thus  suffers  no  injustice.  A  neutral  vessel  has  a  right 
to  carry  the  property  of  the  enemy,  but  subject  to  the 
right  of  the  belligerent  to  bring  in  the  ship  so  employed, 
for  the  purpose  of  bringing  the  cargo  to  adjudication.  A 
neutral  vessel  so  employed,  is  entitled  to  her  freight,  as  a 
lien  attaching  to  the  cargo.  The  captor  takes  cum  onere. 
The  freight  attaches  as  a  lien,  which  he  must  discharge 
by  payment,  provided,  as  it  must  always  be  understood, 
that  there  are  no  unneutral  circumstances  in  the  conduct 
of  the  ship  to  induce  a  forfeiture  of  this  demand.  Where 
a  neutral  vessel  is  brought  in  on  account  of  the  cargo, 
the  vessel  is  discharged  with  full  freight,  because  no 
blame  attaches  to  her;  she  is  ready  and  able  to  proceed 
to  the  completion  of  the  voyage,  and  is  only  stopped  by 
the  incapacity  of  the  cargo.  When  such  an  incapacity 
on  the  part  of  the  cargo  occurs,  the  owner  has  done  his 
utmost  to  carry  his  contract  on  to  its  consummation  ;  it  is 
a  final  execution  as  to  the  owner  of  the  ship,  inasmuch 
as  it  does  not  lie  with  him  that  the  contract  has  not  been 
performed.  Freight  is,  in  all  ordinary  cases,  a  lien,  which 
is  to  take  place  of  all  others.  The  captor  takes  cum  onere. 
It  is  the  allowed  privilege  of  a  neutral  to  carry  the  prop- 
erty of  the  enemy,  subject  to  its  capture  and  the  tempo- 
rary detention  of  his  vessel ;  and  if  he  does  not  prevaricate, 
or  conduct  himself  in  any  respect  with  ill  faith,  he  is 
entitled  to  his  freight.^ 


*  The  Nerelde,  9  Cranch,  Rep.   388  ;  Wildman,  International  Law,  vol.  ii. 
p.  138. 

t  Wildman,  International  Law,  vol.  ii.  p.  153. 

7 


50  THE     SCIENCE     (3  F     GOVERNMENT. 

The  law  in  this  particular,  as  stated,  has  been  often 
recognized  by  Sir  William  Scott,  one  of  the  most  eminent 
and  learned  judges  "svhich  England  has  produced;  whose 
judgments  are  no  less  distinguished  for  their  classical  and 
logical  construction,  than  lor  the  enlightened,  sound 
morality  -which  they  exhibit.  The  position  that  the  neu- 
tral ship,  when  captured  in  consequence  of  having  enemy 
property  on  board,  is  entitled  to  ireight  from  the  captor, 
has  also  been  recognized  and  upheld  by  the  highest  judi- 
cial authority  in  the  country.--^ 

Although  the  principles  which  I  have  suggested  may 
be  considered  as  settled  and  sustained  by  authority,  the 
United  States  have  in  some  instances  agreed,  in  its  trea- 
ties, that  enemy  ships  shall  make  enemy  goods,  and 
thereby  upon  grounds  of  temporar}^  policy,  yielded  for 
the  time  being,  its  adherence  to  a  course  not  in  accord- 
ance with  its  general  policy  in  relation  to  neutral  rights.f 

The  right  of  a  belligerent  to  impose  a  blockade  upon 
the  ports  or  harbors  of  his  enemy,  so  as  to  prevent  access 
thereto,  has  been  universally  conceded  as  the  exercise  of 
a  right  recognized  by  international  law.  Attemjots  have 
been  made  to  establish  constructive  blockades,  or  as  they 
are  more  familiarly  and  significantly  called,  paper  block- 
ades, all  of  which  have  signally  failed. 

It  is  stated  by  Chitt}^,  using  the  language  of  A'attel, 
and  citing  his  works  and  others  as  authority,  that  a  bellig- 
erent may  lay  siege  to  a  place,  or  simply  blockade  it,  and 
having  done  so,  he  has  a  right  to  hinder  any  one  from 
entering,  and  to  treat  as  an  enemy,  whoever  attempts  to 
enter  the  place  or  carry  any  thing  to  the  besieged ;  for 
the  party  attempting  to  enter,  opposes  the  undertaking 


♦  The  Commoren,  1  Wheaton,  Rep.  382. 

t  Treaty  of  Commerce  -with  France,  Feb.  6,  1778,  art.  xiv. ;  Convention  with 
France,  Sept.  30. 1800,  art.  xv. :  Statutes  at  Large,  U.  S.,  vol.  8,  pp.  20,  186. 


THE     SCIENCE     OF     GOVERNMENT.  51 

of  the  belligerent,  and  may  contribute  to  the  miscarriage 
of  it,  and  thus  involve  the  party  engaged  in  the  conflict, 
in  all  the  misfortunes  of  an  unsuccessful  war/'' 

When  a  violation  of  a  blockade  is  averred,  three  things 
must  be  made  out  in  proof:  the  existence  of  an  actual 
blockade,  the  knowledge,  express  or  implied,  of  the  party 
supposed  to  have  violated  it,  and  some  act  of  violation, 
either  by  going  in,  or  coming  out  with  a  cargo  laden 
after  the  commencement  of  blockade.f  A  blockade  must 
be  declared  by  competent  authority ;  the  declaration  is 
an  act  of  sovereignty,  and  can  be  exercised  only  by  the 
sovereign  power,  exercised  ordinarily  by  the  express 
direction  of  such  authority.  An  exception  to  this  is  in 
some  instances  allowed  ;  a  commander  going  to  a  distant 
station,  may  reasonably  be  supposed  to  carry  with  him 
such  a  portion  of  sovereign  authority,  delegated  to  him, 
as  may  be  necessary  to  provide  for  the  exigencies  of  the 
service  on  which  he  is  employed.  A  blockade  is  to  be 
considered  as  actually  existing,  when  there  is  power  to 
enforce  it.  A  complete  blockade  cannot  subsist,  unless 
the  besieging  force  can  apply  its  power  to  every  point  of 
the  blockaded  port.  J  An  accidental  absence  of  the  block- 
ading force,  being  blown  off  by  the  wind,  will  not  defeat 
a  blockade,  if  the  suspension,  and  the  reason  of  the  sus- 
pension, are  known.  A  knowledge  of  the  blockade  in 
the  party  violating,  is  necessary,  which  may  be  attained 
by  a  formal  notification  from  the  blockading  power,  or  by 
the  notoriety  of  the  fact.§  A  blockade  may  be  violated 
by  going  into  the  place  blockaded,  or  by  coming  out  of 
it  with  a  cargo  laden  after  the  commencement  of  the 
blockade.  A  neutral  ship,  which  may  be  in  a  port  prior 
to  the  commencement  of  a  blockade,  may  come  out  in 


*  Chitty,  Law  of  Nations,  p.  128.  f  Ibid.  p.  130. 

t  Mercurius,  1  Rob.  Rep.  80.  §  The  Rolla,  6  Rob.  Rep.  367. 


52  THE     SCIENCE     OF     GOVERNMENT. 

ballast ;  or  if  laden  with  a  neutral  cargo,  put  on  board  be- 
fore the  commencement  of  the  blockade,  may  proceed 
"with  such  cargo.  When  a  blockading  squadron  or  force 
is  driven  off  by  a  superior  force,  the  blockade  cannot  be 
considered  as  actually'  subsisting.  It  is  essential  to  the 
existence  of  a  blockade,  that  the  place  should  be  invested 
by  a  competent  force.  It  must  be  regularly  maintained ; 
if  some  unprivileged  ships  are  allowed  to  come  out  and 
others  to  go  in,  such  a  relaxation  destroys  the  legal  effect 
of  the  blockade.  A  blockade  is  regarded  as  an  imiform, 
universal  exclusion  of  all  vessels  not  privileged  by  law. 
If  such  ships  are  allowed  to  pass,  others  will  have  a  right 
to  infer  that  the  blockade  is  raised.'='  A  mere  proclama- 
tion that  a  place  is  invested,  is  insufficient  to  constitute  a 
legal  blockade.f  This  position  must  be  regarded  as  un- 
deniable, supported  by  the  concurring  assent  and  appro- 
bation of  intelligent  jurists.  It  has  not  always  been  re- 
spected ;  several  efforts  have  been  made  to  give  force  and 
effect  to  mere  paper  blockades ;  these  efforts  have  uni- 
formly been  resisted  by  the  United  States.  If  mere  bul- 
letins were  allowed  to  take  the  place  of  actual  force,  in 
this  respect,  the  commercial  interest  of  the  United  States 
would  become  dependent,  in  time  of  war  between  Euro- 
pean sovereignties,  upon  their  caprice.  Such  result,  or 
the  estabUshment  of  such  principle,  would  be  felt  by  the 
people  of  this  countrj^  at  once  ;  it  would  be  regarded  in- 
consistent with  our  views  of  public  law,  at  variance  with 
our  liberal  system,  the  action  of  which  is  always  indi- 
rectly controlled  by  the  popular  will.  The  doctrine  of 
paper  blockades,  originated  with  the  states-general  of  the 
Netherlands,  in  1630,  at  which  time  they  undertook  by 
proclamation,  to  blockade  the  ports  of  Flanders,  then  in 


*  Wlldman,  International  Law,  vol.  ii.  pp.  179,  182. 
t  The  Betsey,  1  Rob.  Kep.  93. 


THE     SCIENCE     OF     GOVERNMENT.  53 

the  possession  of  Spain.  In  1652,  they  undertook  to 
prohibit  all  the  world  from  trade  with  the  English  ;  but  in 
1663,  when  Spain  undertook  to  carry  the  same  principle 
into  effect,  the  states-general  denied  the-existence  of  such 
rio:ht.'==  In  1689,  Eno-land  and  Holland  entered  into  a 
convention,  by  which  they  undertook  and  agreed  to  in- 
terdict all  neutral  commerce  with  France,  and  to  seize 
any  vessel,  whatever  king  or  state  it  might  belong  to, 
that  should  be  found  sailing  into  or  out  of  the  ports  of 
France,  and  to  condemn  both  vessel  and  cargo  as  lawful 
prize.  These  instances  were  of  little  import.  It  was  re- 
served to  Napoleon  to  renew  the  doctrine,  to  give  it  some 
degree  of  importance,  from  the  boldness  and  vigor  with 
which  he  assumed  the  theory,  and  persisted  in  its  execu- 
tion, to  the  extent  of  his  power.  The  Berlin  and  Milan 
decrees  are  as  familiar  as  household  words.  They  were 
met  by  the  British  orders  in  council,  which  were  as  regard- 
less of  the  law  of  nations  and  the  rights  of  neutral  coun- 
tries, as  had  l3een  the  decrees  of  Napoleon.  The  orders 
in  council  were  sustained  j)artially  by  the  courts  of  ad- 
miralty, in  England,  not  upon  principles  of  international 
law,  but  upon  the  ground  that  France,  by  disregarding 
all  law,  had  put  itself  beyond  the  pale  of  law,  and  as 
matter  of  self-preservation,  England  might  well  meet  the 
enemy  with  its  own  weapons.  The  matter  of  blockade 
has  frequently  been  the  subject  of  treaty  negotiation  by 
this  country  Avith  other  nations,  in  all  of  which,  an  ad- 
herence has  been  maintained  to  the  clear  and  reasonable 
rights  appertaining  thereto. 

In  some  instances,  the  United  States  have  obtained  by 
treaty  a  recognition  of  the  law  of  blockade,  with  all  the 
modifications  and  safeguards  for  its  exercise  which  could 
be    reasonably  required,  which   has   produced   a  slight 

*  V^heatou,  Law  of  Nations,  p.  137,  et  seq. 


54  THE     .SCIENCE     OF     C  0  VEllNM  ENT. 

modification  of  its  rigor.  Treaties,  soon  after  our  inde- 
pendence and  government  had  assmned  a  degree  of  firm- 
ness and  an  ability  to  command  respect  abroad,  were 
made  with  France  and  Great  Britain,  in  which  it  was 
stipulated,  that  a  ship  sailing  to  a  blockaded  port,  with- 
out knowledge  of  the  blockade,  should  be  warned  off; 
that  a  vessel  in  such  condition  should  not  be  liable  to 
seizure,  unless,  after  such  w\arning,  it  should  enter,  or 
make  an  attempt  to  enter  a  second  time/-'  A  mere 
intent  to  enter,  not  manifested  by  some  overt  act,  or 
attempt  to  enter,  has  never  been  regarded  as  a  breach  of 
blockade.  In  April,  1804,  some  two  or  three  years  only 
before  the  British  orders  in  council,  to  which  reference 
has  been  made,  the  British  government  issued  orders  to 
to  its  naval  commanders  not  to  consider  blockades  as 
existmg,  unless  in  respect  to  particular  ports  which  might 
be  actually  invested,  and  in  such  case  not  to  enter  them. 
The  principles  of  blockade,  to  which  reference  has  been 
made,  which  I  have  endeavored  to  state  intelligibly,  and 
with  proper  limitations,  have  been  discussed  by  the 
Supreme  Court  of  the  United  States,  whose  judgments 
upon  this  subject  are  characterized  for  their  learning  and 
adherence  to  sound  international  law.f 

The  United  States  ha\ie  been,  and  must  be,  indebted 
for  a  large  portion  of  its  commercial  welfare,  to  a  sound, 
honest  interpretation  and  enforcement  of  these  principles. 
Another  right,  connected  with  our  natural  neutral  posi- 
tion, is,  the  right  of  a  neutral  nation,  in  time  of  war,  to 
engage  in  the  coasting  or  other  trade  of  a  belligerent,  in 
which  the  neutral  is  not  allowed  to  participate  in  time  of 


*  Fitzsimmons  v.  The  Newport  Ins.  Co.  4  Cranch,  Rep.  185  ;  Yeaton  v.  Fry, 
5  Cranch,  Rep.  335;  Olivera  v.  Union  Ins.  Co.  3  Wlieat.  Rep.  183. 

t  Treaty  with  Great  Britain,  Nov.  19,  1794,  art.  .xvii. ;  Treaty  with  France, 
Sept  30,  1800,  art.  xii. 


THE     SCIENCE     OF     GOVERNMENT.  55 

peace.  It  has  been  the  policy  of  every  maritime  nation 
to  keep  its  coasting  trade  in  its  own  hands.  Foreign 
nations  have  not  been  permitted  usually  to  engage  in  it. 
A  variety  of  considerations  might  be  adduced,  which  will 
readily  occur  to  you,  showing  the  ^tness  of  this  rule.  It 
may  be  regarded  as  a  matter  almost  essential  to  self-pre- 
servation. If  a  foreign  nation  should  be  allowed  to 
engage,  in  time  of  peace,  in  our  coasting  trade,  it  would 
afford  to  such  nation  great  opportunities  for  acquiring  an 
accui:ate  knowledge  of  our  views,  the  convenience  or  in- 
convenience of  particular  localities,  as  places  of  disem- 
barkment  in  time  of  w^ar,  and  generally  to  accj^uire  a 
knowledge  of  our  capabilities,  of  our  weak  and  strong 
points,  which  might  subsequently  be  used  to  our  disad- 
vantage. Our  coasting,  or  home  trade,  is  also  essential 
to  a  nursery  for  seamen.  It  is  a  means  of  extending  our 
intercourse  as  citizens  of  a  common  country,  of  increasing 
our  wealth  as  a  nation,  and  generally  of  adding  to  our 
comfort  and  security.  Our  navigation  laws  are  in  accord- 
ance with  these  considerations.  Independent  of  these 
suggestions,  and  of  authority  which  might  be  cited 
upon  the  subject,  it  would  seem  that  a  neutral  nation 
cannot,  in  time  of  war,  claim  to  have  an  enlargement  or 
expansion  of  its  rights.  A  neutral  nation  is  obliged  to 
modify,  and  surrender,  in  some  particulars,  as  has  been 
shown,  its  accustomed  immunities,  to  the  condition  or 
status  of  nations  at  war.  If  allowed  to  enlarge  them  by 
the  exercise  of  new  and  unusual  rights,  it  would  be  able 
to  protract  and  defeat  the  purpose  of  war,  and  thus  ope- 
rate to  its  own  prejudice,  and  would,  most  probably,  in- 
volve itself  in  the  controversy  of  its  neighbors.  This 
matter,  however,  has  been  the  subject  of  negotiation,  and 
has  generally  been  regulated,  in  treaties,  in  conformity 
with  what  would  seem  to  be  the  natural  or  reasonable 
course  to  be  adopted. 


56  THE     SCIENCE     OF     GOVERNMENT. 

In  one  instance,  at  least,  in  a  treaty  made  by  this 
country  -with  France,  the  right  to  engage  in  the  coasting 
or  in  the  home  trade,  and  in  the  colonial  trade  of  an 
enemy,  in  time  of  war,  has  been  conceded.  In  a  case 
before  the  Supreme  (^ourt  of  the  United  States,  it  was 
assumed,  as  a  ■svell  settled  principle  of  international 
law.  that  a  neutral  nation  could  not,  with  propriety  or 
impunity,  engage  in  the  coasting  trade  of  an  enemy  in 
time  of  war,  independent  of  compact  or  treaty  stipu- 
lation.^^" 

The  only  remaining  topic  to  which  your  attention  will 
be  requested  in  this  connection,  is  the  right  of  visitation 
and  search.  In  time  of  war,  this  right  must  be  regarded 
as  clear,  in  fiwor  of  the  belligerent,  as  indispensable  to 
his  security.  It  cannot  be  questioned,  so  long  as  war 
shall  be  res:arded  one  of  the  lei>:itimate  modes  of  defence, 
or  an  instrument  to  be  emploj'ed  in  the  assertion  of 
right.  Mr.  Wildman,  a  recent  able  and  accurate  annota- 
tor,  or  writer  npon  international  law,  says :  ''  Every 
vessel  is  bound  to  submit  to  visitation  and  search,  whether 
it  be  a  vessel  of  a  friend,  or  of  an  ally,  or  even  of  a  sub- 
ject, and  submission  ma}*  be  compelled,  if  necessary,  by 
force  of  arms,  without  giving  claim  to  compensation  for 
an}^  damages  incurred  thereby ;  if  the  vessel  upon  visita- 
tion should  not  be  found  liable  to  be  detained,  no  cir- 
cumstances can  dispense  with  this  obligation.  A  vessel 
is  not  exempted,  either  b}^  its  built,  or  its  flag ;  such 
circumstances  furnish  no  proof  of  the  national  character 
of  the  vessel ;  and  if  a  vessel  be  neutral,  a  belligerent  is 
entitled  to  ascertain,  whether  there  is  either  enemy  prop- 
erty, or  contraband  of  Avar  on  board.  If  a  master  of  a 
vessel  resists  search  by  force,  that  is  a  ground  of  confisca- 
tion.    The  right  of  visiting  and  searching  merchant  ships 


*  The  Commoren,  1  "WTjeat.  Rep.  382 


THE     SCIENCE     OF     GOVERNMENT.  57 

on  the  high  seas,  whatever  be  the  ships,  whatever  be  the 
cargoes,  whatever  be  the  destinations,  is  an  incontestable 
right  of  the  lawfull}^  commissioned  crnisers  of  a  beUiger- 
ent  nation.  Until  they  are  visited  and  searched,  it  does 
not  appear  what  the  shijjs,  or  the  cargoes,  or  the  destina- 
tions are ;  and  it  is  for  the  purpose  of  ascertaining  these 
points,  that  the  necessity  of  this  right  of  visitation  and 
search  exists.  This  right  is  so  clear  in  principle,  that  no 
man  can  deny  it  who  admits  the  legality  of  maritime 
capture  ;  because  if  you  are  not  at  liberty  to  ascertain  by 
particular  inquiry  whether  there  is  ^^I'operty  that  can  be 
legall}^  captured,  it  is  impossible  to  capture."  Good  faith 
and  an  observance  of  the  law  of  nations  is  required 
from  every  neutral  nation ;  if  such  nation  does  not 
regard  the  law  in  this  particular,  it  cannot  rightfully 
complain  of  the  consequences  Avhich  may  and  must 
result  from  such  disregard  of  well  established  principle, 
and  from  its  own  violation  of  duty.  The  right  of  visita- 
tion must  be  exercised  with  as  little  harshness  and  vexa- 
tion in  the  mode  as  possible ;  but  soften  it  as  much  as 
may  be,  it  is  a  right  of  force,  though  of  lawful  force, 
which  cannot  lawfully  be  resisted.  It  is  an  erroneous 
and  wild  conceit,  that  wherever  force  is  used,  it  may  be 
forcibly  resisted ;  a  lawful  force  cannot  lawfully  be  re- 
sisted. Resistance  by  a  neutral  to  visitation  and  search, 
is  regarded  as  cause  of  condemnation,  without  reference 
to  the  fact,  or  inquiry,  whether  an  examination  would 
lead  to  a  detention  and  condemnation  or  not.  Sailing 
under  convoy  of  an  enemy,  is  not  regarded  as  a  protec- 
tion to  the  neutral,  but  as  a  manifestation  of  an  intent 
or  willingness  to  espouse  and  to  uphold  his  interests.  It 
has  been  sometimes  agreed  by  nations,  that  a  ship  sailing 
under  the  convoy  of  an  armed  or  public  ship  of  the 
nation  to  which  it  belongs,  shall  not  be  subject  to  visita- 
tion and  search.     This,  however,  is  not  a  matter  of  right, 

8 


f58  THE     SCIENCE     OF     GOVERNMENT. 

is  not  regarded  by  the  law  of  nations  as  a  protection  ; 
if  this  were  so,  the  right  of  visitation  and  search  might 
be  rendered  futile  and  nugatory.  A  necessary  deduction 
from  the  principles  discussed,  results  in  the  establishment 
of  the  position,  to  which  reference  has  been  made,  that 
every  right,  public  and  private,  is  to  be  exercised  and 
enforced,  so  as  not  to  be  incompatible  with,  or  in  viola- 
tion of,  the  private  and  public  rights  of  others. 

This  principle  or  fact  cannot  too  frequently  be  the 
subject  of  your  consideration  and  regard  ;  it  applies  to  all 
the  relations  of  life,  which  you  can,  or  may  assume  as 
members  of  civilized  society,  as  members  of  the  human 
family,  however  extensive  the  limits  and  ramifications 
may  be. 

The  supposed  right  of  visitation  and  search,  in  time  of 
peace,  stands  upon  considerations  entirely  distinct  from 
and  dependent  upon  principles,  which  do  not  and  cannot 
apply  to  a  state  of  war.  The  right  of  search  as  applied, 
and  as  attempted  to  be  applied  in  time  of  peace,  has 
been  the  subject  of  discussion,  between  this  country  and 
England,  since  the  establishment  of  our  independence. 
It  was  the  most  prominent  and  the  principal  cause  of  the 
war  of  1812.  In  the  negotiations  upon  this  subject 
which  have  taken  place,  our  sense  of  right,  of  independ- 
ence, the  free  and  enlightened  basis  of  our  system,  have 
been  exhibited  and  adhered  to  with  more  constant  and 
unwavering  persistence,  than  in  any  other  matter  con- 
nected with  our  foreign  relations. 

In  these  negotiations  our  moral  power  and  influence 
has  been  disclosed,  and  its  propriety  acknowledged.  Great 
Britain,  from  the  time  at  which  she  acknowledged  our 
independence  until  a  recent  period,  has  claimed  the  right 
of  visitation  and  search,  in  time  of  peace,  upon  two 
grounds,  and  for  two  purposes;  the  suppression  of  sla- 
very, and  the  taking  from  our  ships  its  own  seamen ;  in 


THE     SCIENCE     OF     GOVERNMENT.  59 

other  words,  the  impressment  of  seamen.  This  claim 
has  uniformly  been  resisted,  and  it  may  now,  in  conse- 
quence of  our  firmness,  be  regarded  as  abandoned.  The 
purpose,  the  object  to  be  attained  by  this  claim,  has  great 
jDlausibility  and  may  be  sustained  by  very  cogent  consid- 
erations. The  suppression  of  the  slave-trade  is  desirable  ; 
every  consideration  of  right  and  of  humanity  which  can 
be  suggested,  favors  any  movement  or  effort  which  can 
be  rightfully  made  in  its  accomplishment.  It  may  then 
be  asked,  why  not  yield  to  the  right  of  visitation  and 
search,  that  thereby  an  admitted  good  purpose  may  be 
accomplished,  and  an  admitted  and  barbarous  wrong  may 
be  defeated  and  prevented  ?  The  answer  is  of  a  two-fold 
character ;  it  is  never  right  to  do  wrong  that  good  may 
come.  The  conduct  of  a  nation,  like  that  of  an  individ- 
ual, cannot  be  watched  and  controlled,  in  matters  merely 
of  a  supposed  moral  character,  by  its  neighbors,  but  must 
be  left  to  its  own  guidance,  to  its  own  sense  and  appre- 
ciation of  its  duties,  otherwise  confusion  and  disorder 
would  be  substituted  for  peace  and  character.  In  other 
words,  the  conduct  and  integrity  of  a  nation  confined  to 
its  own  borders  and  within  its  own  jurisdiction,  cannot  be 
the  subject  of  rightful  complaint  or  interference,  by  those 
whose  rights  and  immunities  are  not  touched  or  impaired. 
Upon  this  question  the  conduct  of  the  American  govern- 
ment, and  of  those  intrusted  with  its  public  functions, 
has  ever  been  distinguished  for  its  firm,  unyielding,  and 
unassailable  integrity. 

The  suppression  of  slavery  has  ever  been  an  object  of 
solicitude  to  our  government,  the  aid  of  which,  to  an  ac- 
complishment thereof,  has  been  uniformly  extended. 
The  United  States,  in  advance  of  other  countries,  by  its 
penal  enactments,  declared  the  slave-trade  to  be  piracy. 
It  has  often  stipulated  in  its  treaties,  to  assist  in  its  sup- 
pression, by  every  reasonable  effort  in  its  power.    In 


60  THE     SCIENCE     OF     GOVERNMENT. 

1818,  the  English  government  undertook  to  estabhsh  the 
right  of  search,  in  time  of  jieace,  for  certain  purposes, 
among  which  was  the  suppression  of  the  slave-trade  ; 
several  governments  assented ;  application  was  made  to 
the  United  States  for  its  approval,  which  failed.  In 
reply  to  this  request,  Mr.  John  Quincy  Adams,  secretary 
of  state  under  Mr.  Monroe,  was  directed  to  say  to  the 
British  government,  that  the  solicitude  of  the  United 
States  for  the  accomplishment  of  the  common  object,  the 
total  and  final  abolition  of  the  slave-trade,  continued  with 
all  the  earnestness  which  had  ever  distinguished  the 
course  of  their  policy  in  respect  to  that  odious  traffic. 
He  was  also  instructed  to  say,  that  the  admission  of  a 
right  in  the  officers  of  foreign  ships  of  war  to  enter  and 
search  the  vessels  of  the  United  States,  in  time  of  peace, 
under  any  circumstances  whatever,  Avould  meet  the  imi- 
versal  repugnance  of  the  public  opinion  of  the  country ; 
that  no  such  right  could  be  conferred  by  treaty,  with 
any  hope  that  it  would  be  ratified  by  the  advice  and 
consent  of  the  senate ;  that  the  search  by  foreign  offi- 
cers, even  in  time  of  war,  was  so  obnoxious  to  the  feel- 
ings of  the  country,  that  nothing  could  reconcile  them 
to  the  extension  of  it  to  a  time  of  peace,  however  quali- 
fied or  restricted.  Here,  our  system,  its  peculiarities,  the 
power  and  influence  of  the  people,  of  the  popular  voice, 
was  seen  and  felt.  The  course  of  the  country  on  this 
and  on  all  similar  occasions,  w^as  and  has  been,  open, 
manly,  and  frank.  We  said  then,  as  we  say  now,  our 
morals,  our  duty,  our  sense  of  right  and  humanity  is,  and 
ever  must  be,  in  our  keeping. 

The  right  of  search,  in  its  other  aspect,  as  claimed  by 
Great  Britain,  that  of  taking  its  own  seamen  from  our 
ships,  the  right  of  impressment  would  seem  to  be  unob- 
jectionable, as  an  abstract  proposition.  Why  should  the 
United  States  employ  the  subjects  of  other  countries  in 


THE     SCIENCE     OF     GOVERNMENT.  61 

its  ships,  in  its  service,  and  set  up  a  right,  an  immunity 
so  to  clo.  They  do  not,  and  shoukl  not  assert  such  right ; 
but  they  say,  and  rightfully,  to  the  party  which  attempts 
to  redress  its  wrongs,  or  to  assert  its  rights  in  this  mode, 
you  cannot  take  the  law  into  your  ow^n  hands.  If  wrong 
has  been  done  by  the  United  States,  it  shall  be  compen- 
sated; the  nation,  in  its  sovereign  capacity,  is  the  dispenser 
of  its  own  justice ;  it  will  not  do,  and  cannot  suffer 
wrong ;  it  cannot  leave  to  the  casual,  irregular,  and  acci- 
dental arbitrament  of  another,  the  redress  of  its  sup- 
posed wrongs.  In  this  particular,  and  upon  this  subject, 
it  may  well  be  said,  our  system,  our  principles,  have  ex- 
erted an  influence,  which  has  not  been  surpassed  by  that 
of  any  other  nation.  The  right  of  exemption,  the  immu- 
nity from  search,  has  been  conceded  by  France,  in  a  treaty 
made  with  the  United  States.  England  has  not  yielded 
the  position,  so  far  as  I  know,  by  express  stipulation,  but 
her  statesmen  have  yielded  the  pretension.  It  may  now 
be  regarded  as  settled,  as  a  well  established  principle  of 
international  law,  that  the  right  of  visitation  and  search, 
in  time  of  j)eace,  under  any  pretext,  cannot  be  sustained ; 
that  the  flag  of  every  country,  in  time  of  peace,  must  be 
regarded  as  a  safeguard  and  protection  to  those  over 
whom  its  folds  are  spread.  In  the  assertion  of  this  prin- 
ciple, in  the  ascertainment  of  neutral  rights,  the  United 
States  and  its  system  have  done  much.  The  freedom 
which  American  citizens  boast  as  their  inheritance,  the 
liberty  regulated  by  law,  which  is  the  result  of  their  sys- 
tem, have  done  much,  have  had  an  influence  upon  the 
institutions,  upon  the  thoughts  of  other  nations.  It  is 
for  you  to  say,  whether  you  will,  by  holding  fast  to  your 
integrity,  to  your  principles,  to  your  system,  continue  to 
give  force  and  effect  to  this  influence.  You  must  answer 
this  for  yourselves  ;  not  by  your  professions,  but  by  your 
conduct,  by  an  adherence  to  the  union,  by  which  your 


62  THE     SCIENCE     OF     GOVERNMENT. 

political  rights,  as  one  of  the  nations  of  the  earth,  have 
been  recognized  and  iqjheld,  without  which  they  must  in- 
evitably jjeconie  the  sport  of  every  wind.  The  examina- 
tion which  I  have  made  of  our  system,  in  its  treaty  nego- 
tiations, has  increased  in  my  mind  the  importance  of 
maintaining  our  free  institutions.  It  has  disclosed  its 
power  and  adaptation  to  any  and  every  well  educated, 
intelligent,  well  disposed  people.  God  grant  that  it  may 
be  perpetual ! 


LECTURE    III. 


THE  EXTERNAL  POWER  OP  THE  FEDERAL  GOVERNMENT.— AMBASSADORS.  — THE  WAR- 
MAKING  POAYER.— THE  ACQUISITION  OF  TERRITORY. 


The  relation  of  nations  is  in  its  character  individual. 
It  is  the  intercourse  of  government  with  government ;  it 
is  entirely  distinct  from  the  privileges  which  a  nation 
within  its  own  territory,  as  matter  of  comity  or  contract, 
may  extend  to  the  citizens  of  another.  Upon  this  ground, 
a  nation  does  not,  de  jure,  officially  or  judicially  know 
the  internal  character  of  the  government,  or  of  the  insti- 
tutions of  other  nations.  A  nation  learns  these  particu- 
lars, so  far  as  it  may  be  fit  and  essential  to  learn  them,  so 
as  to  determine  whether  the  condition  of  any  particular 
nation  is  such  as  to  render  an  intercourse  with  it  practi- 
cable or  desirable,  and  only  so  far  as  may  be  essential  to 
determine  whether  political  or  commercial  arrangements 
can  be  made,  with  a  reasonable  certainty  of  the  existence 
of  some  power  or  authority  adequate  to  make,  to  perform 
them.  Whenever  governments  which  exercise  an  abso- 
lute power,  negotiate  with  each  other,  they  may  contract 
at  pleasure.  Not  so  when  limited  governments  contract 
with  each  other,  or  with  absolute  governments.  In  such 
case,  the  unlimited  or  absolute  government  must  regulate 
its  official  intercourse  so  as  to  conform  to  the  construction 
and  limited  power  of  the  government  with  which  it  con- 


64  THE     SCIENCE     OF     GOVERNMENT. 

tracts.  The  external  power  of  a  government  is,  there- 
fore, naturally  and  ordinarily  executive  in  its  character, 
and  is  exercised  by  the  person  or  department  which  is  in- 
trusted with  its  political  duties  or  associations.  The 
treaty-making  power  in  its  exercise,  as  has  been  shown, 
is  not  confided  exclusively  to  the  executive,  but  is  sub- 
ject to  the  consent  of  an  independent  bod}',  (a  portion  of 
the  legislative  department,)  and  may,  in  some  instances, 
as  has  been  shown,  be  controlled  or  defeated  by  the  ne- 
glect or  refusal  of  the  legislative  department  to  furnish 
the  means  of  execution.  The  same  distrust,  or  caution, 
the  same  limitation  of  power,  is  manifest  in  the  appoint- 
ment of  diplomatic  and  commercial  agents. 

By  the  constitution  of  the  United  States,  the  president 
has  power  to  nominate,  and,  by  and  with  the  advice  and 
consent  of  the  senate,  shall  appoint  ambassadors  and 
other  public  ministers  and  consuls.  During  the  recess  of 
the  senate,  he  may  fill  any  vacancy  which  may  occur 
in  such  offices ;  and  appointments  thus  made  may  con- 
tinue until  the  end  of  the  next  session  of  the  senate. 
The  president  has  the  exclusive  power  to  receive  ambas- 
sadors and  other  public  ministers  from  other  nations, 
accredited  to  the  United  States.  This  discrimination  is 
worthy  of  note.'-'  The  character  of  a  foreign  minister  is 
in  accordance  with  the  character  of  the  sovereignty  which 
he  represents ;  his  appointment  is  the  exercise  of  an  act 
of  sovereignty.  The  nation  to  which  he  is  accredited 
cannot  regard  the  mode  of  his  appointment  as  material 
to  itself  The  character  of  a  minister  sent  from  a  coun- 
try is  material  to  the  party  by  which  he  is  sent.  He  may 
discredit  his  principal,  may  endanger  the  peace  of  his 
country,  and  be  the  means  of  producing  disastrous  coUis- 


*  Constitution  of  United  States,  art.  ii.  sections  2  and  3. 


THE    SCIENCE     OF     GOVERNMENT.  65 

ion.  These  difficulties  are  obviated,  as  the  senate  is 
required  to  pass  u^Don  the  fitness  of  those  delegated  to 
represent  the  sovereignty  of  the  United  States  and  its 
institutions  at  foreign  courts. 

The  privileges  and  duties  of  ambassadors  and  other 
public  ministers,  the  matters  which  may  rightfully  be 
the  subject  of  diplomatic  correspondence,  are  not  con- 
ferred or  regulated  by  local  or  municipal  law,  but  by  the 
law  of  nations.  In  this  particular  our  system  has  no 
peculiarity,  but  its  influence  is  felt  abroad  through  our 
diplomatic  agents  and  correspondence.  Prior  to  the 
fifteenth  century,  the  intercourse  of  nations  with  each 
other,  was  irregular  and  casual.  During  that  century 
and  the  next  succeeding,  it  assumed  a  different  character, 
became  more  frequent,  regular,  and  permanent.  During 
the  period  referred  to,  combinations  and  alliances  were 
entered  into  between  the  European  powers;  some  of 
which  were  for  peaceful,  some  for  warlike  purposes. 
These  gave  rise  to  alliances,  which  to  some  extent  have 
been  continued  to  the  present  time,  which  were  entered 
into  to  maintain  a  supposed  or  assumed  balance  of 
power,  to  prevent  the  acquisition  by  one  nation  of  too 
much  territory,  or  the  attainment  of  a  power  not  easily 
resisted,  or  which  might  become  dangerous  and  alarming. 
These  alliances  were  entered  into  by  the  executive,  by 
the  governments  as  such,  acting  independent  of  the 
people,  and  not  as  the  representatives  of  the  people,  or 
of  their  will.  As  these  alliances  and  combinations  had 
no  direct  and  immediately  perceptible  bearing  upon  the 
daily  individual  or  domestic  life  of  the  people,  they  ope- 
rated ultimately  as  the  means  of  oppression,  and  as  the 
means  of  sustaining,  in  different  governments,  the  exist- 
ence of  an  absolute  power.  In  the  seventeenth  century, 
Louis  XIV.,  by  his  diplomacy,  added  to  his  absolute 
power  no  less  than   by  his  arms,  and  by  the  wars  in 

9 


66  THK     SClENCi:     OF     GOVERXMENT. 

which  he  constantly  engaged.  AV'ith  his  death,  the 
power  ot"  the  crown,  which  he  had.  for  the  time,  accumu- 
lated and  enlarged,  was  diminished,  because  France  then 
had  no  internal  institutions  of  suthcient  capacity  to  up- 
hold it.  History  is  replete  with  instances  showing  that 
the  power  of  the  crown,  of  kings  and  of  governments,  is 
enlarged  or  diminished,  is  exercised  for  good  or  for  evil, 
in  proportion  to  the  stability  and  permanence  of  their  in- 
ternal institutions,  in  proportion  to  the  intelligence  and 
the  power  of  the  people,  whose  progress,  refinement,  and 
elevation  is  the  standard,  by  which  the  progress  of 
society  is,  ever  has  been,  and  ever  must  be,  measured.* 
These  alliances  have  given  opportunity  for  an  inter- 
change between  nations  of  their  respective  agents ;  have 
produced,  in  fact,  the  establishment  of  an  international 
institution  or  system  of  diplomacy.  Some  of  these  agents 
are  for  political,  others  for  commercial  purposes.  Am- 
bassadors and  other  public  ministers  may  be  regarded  as 
political  agents.  Some  are  intrusted  with  duties  of  a 
general  and  permanent  character,  others  with  those  which 
are  special.  Consuls  and  their  deputies  are  the  commer- 
cial agents  of  the  nations  which  they  represent.  Public 
ministers  are  regarded  as  the  representatives  of  the 
sovereignty  by  which  they  are  respectively  appointed, 
and  although  resident  in  the  country  to  which  they  may 
be  accredited,  they  are  not  amenable  to  its  laws  or  juris- 
diction, civil  or  criminal.  The}'  are  regarded  as  having 
an  extra-territorial  character  and  position.  The  immu- 
nities extended  to  them  are  the  immunities  of  their  prin- 
cipals, whose  interests  would  be,  or  might  be,  defeated  or 
injured,  if  the  agents  were  subject  to  any  law  or  control, 
except  the  law  and  control  of  the  master.   Their  servants, 


Guizot  on  Civilization,  p.  238  and  295,  £ng.  edition. 


THE     SCIENCE     OF     GOVERNMENT.  67 

retinue,  and  assistants  are  protected.  They  are  allowed 
to  enjoy  at  their  residences  such  religious  rights  and  cere- 
monies as  may  be  consistent  with  their  individual  views 
and  belief,  for  the  benefit  and  improvement  of  those 
attached  to  the  embassy.  These  are  some  of  their  pri- 
vileges, from  which  the  character  of,  and  the  principles 
upon  which,  all  their  rights  and  immunities  are  founded 
may  be  deduced.  These  rights  and  immunities  exhibit 
the  extent  and  character  of  the  civilization  which  the 
most  prominent  and  powerful  nations  of  the  earth  have 
attained.  The  effect  and  influence  of  which  are  reflected 
from  and  upon  the  communities  by  which  such  liberal, 
enlarged,  and  sound  principles  of  reason  and  morality 
have  been  established.*  Notwithstandino;  the  rig-hts  of 
an  ambassador  are  now  well  defined  and  understood,  they 
have  not  always  been  regarded,  not  always  understood, 
as  they  now  exist.  Many  gross  violations  have  occurred. 
In  the  time  of  Queen  Anne,  an  ambassador  of  Peter  the 
Great  was  arrested  in  the  streets  of  London  for  a  debt  of 
fifty  pounds.  He  complained  to  the  queen  and  to  his 
own  government.  The  persons  engaged  in  his  arrest 
were  examined  and  imprisoned.  The  czar  of  Russia 
requested  that  the  sheriff  and  his  assistants  should  be 
put  to  death,  to  wdiich  the  queen  replied,  that  she  could 
inflict  no  punishment  on  any  the  meanest  of  her  subjects, 
unless  warranted  by  the  law  of  the  land ;  and,  therefore, 
was  persuaded  that  he  would  not  insist  upon  impossi- 
bilities. An  act  was  introduced  in  parliament  and  passed, 
by  which  such  violations  of  the  law  of  nations  were  sub- 
jected to  severe  penalties.  A  copy  was  engrossed  upon 
parchment  and  sent  to  the  monarch,  whose  agent  had 
been  thus  improperly  arrested.    This  instance  is  a  forcible 


*  AViklman,  Law  of  Nations,  vol.  i.  p.  78,  et  seq.     As  to  consuls,    see    The 
Bello  Corrunes,  6  Wheat.  Rep.  152  ;  Davis  v.  Packard,  7  Pet.  S.  C.  Rep.  276. 


68  THE     SCIENCE     OF     GOVERNMENT. 

illustration  of  the  beauty  and  power  of  limited  institu- 
tions, no  less  under  a  monarch}^  than  it  would  have  been 
under  a  republic.  It  exhibits  the  reason  and  fitness  upon 
which  all  law  is  or  should  be  founded. 

A  nation  which  has  friendlj^  relations  with  another,  is 
bound  to  receive  a  minister  accredited  to  it,  imless  some 
reasonable  and  proper  objection  can  be  made  to  the  per- 
son accredited,  or  to  his  mission.  The  reception  of  a 
minister  by  the  government  to  which  he  is  accredited,  is 
in  effect  an  acknowledgment  of  the  sovereignty  and  po- 
litical existence  of  the  power  from  and  by  which  he  is 
sent,  upon  the  plain  and  simple  ground,  that  an  agent 
cannot  exist  which  has  no  principal.  The  privileges  of 
an  ambassador  continue  not  onlj^  during  his  residence  in, 
but  during  his  journey  to,  and  return  from,  the  country 
to  which  he  is  commissioned.  So  far  as  I  have  seen,  the 
powers  of  an  ambassador  are  said,  by  writers  upon  the 
subject,  to  cease  upon  the  death  of  the  sovereign  to  which 
he  is  sent,  or  by  the  death  of  the  sovereign  by  which  he 
is  sent. 

In  some  instances  this  may  be  so,  but  as  a  general 
proposition,  it  is  not  in  my  judgment  sound.  It  is  true, 
when  a  principal  dies,  his  agent  cannot  continue  to  act ; 
so  when  the  principal  dies,  with  which  an  agent  of 
another  is  authorized  to  negotiate,  no  person  exists  with 
whom  to  conduct  the  agency,  and  the  power  cannot  be 
exercised.  This  princijDle  of  reason  and  law  cannot  be 
applied  to  the  case  of  an  ambassador,  or  other  public 
minister,  who  is  not  regarded  as  the  representative  or 
agent  of  the  natural  person  who  is  king  or  president,  but 
as  the  representative  of  government,  which  does  not 
cease  to  exist,  or  lose  its  sovereignty,  because  its  head  or 
principal  officer  may  have  deceased.  The  duties  of  an 
ambassador,  the  character  of  the  services  which  he  is 
expected  to  perform,  are  well  described  in  a  circular 


THE     SCIENCE     OF     GOVERNMENT.  69 

prepared  by  the  government  of  the  United  States,  for 
the  guidance  of  its  diplomatic  agents.  In  this  circular 
it  is  said,  "  Amongst  the-most  important  general  duties  of 
a  minister,  or  other  diplomatic  agent  of  the  United  States 
in  foreign  countries,  is  that  of  transmitting  to  his  own 
government  accurate  information  of  the  policy  and  views 
of  that  to  which  he  is  accredited,  and  of  the  character 
and  vicissitudes  of  its  important  relations  with  other 
powers.  To  acquire  this  information,  and  particularly  to 
discriminate  between  that  which  is  authentic  and  that 
which  is  spurious,  requires  steady  and  impartial  observa- 
tion, a  free,  though  cautious  correspondence  with  the 
other  agents  of  the  United  States  abroad,  and  friendly 
social  relations  with  the  members  of  the  diplomatic  body 
at  the  same  place.  In  their  correspondence  w^ith  the 
department  of  state,  besides  the  current  general  and 
particular  politics  of  the  country  where  they  are  to 
reside,  the  diplomatic  agents  of  the  United  States  will 
be  mindful,  as  they  may  find  it  convenient,  to  transmit 
information  of  every  kind  relating  to  the  government, 
finances,  commerce,  arts,  sciences,  and  condition  of  the 
nation,  not  already  known,  and  which  may  be  made  use- 
ful to  the  United  States.  Books  of  travel  containing 
statistical  or  other  information  of  political  importance, 
historical  works  not  before  in  circulation,  authentic  maps 
published  by  authority  of  the  state,  or  distinguished  by 
extraordinary  reputation,  and  publications  of  new  and 
useful  discoveries,  will  always  be  acceptable  acquisitions 
to  the  department."  =•' 

As  a  compensation  for  the  immunities  granted  to  pub- 
lic ministers,  from  respect  to,  and  as  matter  of  right  in, 
their  sovereigns,  the  persons  so  employed  are  expected 
to  demean  themselves  in  conformity  wdth  their  dignity 

*  Elliot,  Diplomatic  Code,  vol.  ii.  pp.  390,  391. 


70  THE     SCIENCE     OF     GOVERNMENT. 

and  position.  They  are  not  at.liberty  to  meddle  or  inter- 
vent'  in  any  manner  in  the  business,  institutions,  or  local 
Ijolitics  ol'  the  country  to  which  they  may  be  accredited. 
As  already  said,  they  enjoy  exterritoriality  by  which 
they  are  considered  to  live  out  of  the  territory  in  which 
they  really  reside ;  this  privilege  should  not  be  abused,  or 
made  the  occasion  of  creating  feuds  or  dissensions  in  the 
country,  in  w'hich  they  enjoy  such  immunity.  If  a  min- 
ister is  regardless  of  his  duty,  he  may  be  dismissed ;  if  he 
violates  the  law  of  the  country  where  he  is,  complaint 
and  application  for  redress  should  be  made  to  the  sove- 
reignty he  represents. 

An  instance  of  this  character  occurred  soon  after  the 
adoption  of  the  federal  constitution.  The  proclamation 
of  neutrality  made  by  President  AVashington  was  disap- 
proved by  many  citizens,  and  by  a  portion  of  the  press, 
upon  an  assumption  that  it  was  a  violation  of  the  obliga- 
tions which  the  United  States  had  assumed  in  favor  of 
France.  The  country'  was  excited,  and  its  stability  seem- 
ingly endangered  by  its  own  citizens,  actuated,  as  they 
supposed,  or  assumed  to  suppose,  by  motives  of  justice  to 
their  country  and  its  neighbors.  In  this  condition  of 
things,  Genet,  ambassador  of  France,  assumed  the  extra- 
ordinary and  unwarrantable  authority  to  impower  the 
French  consuls  throughout  the  United  States,  to  act  as 
courts  of  admiralty  for  trying  and  condemning  such 
prizes  as  the  French  cruisers  might  bring  into  American 
ports.  Under  this  assumed  authority,  which  was  a  mani- 
fest and  bold  violation  of  the  law  of  nations,  a  gross  vio- 
lation of  the  duty  of  the  minister,  vessels  were  seized  by 
French  armed  ships,  and  brought  into  the  jDorts  of  the 
United  States  for  condemnation. 

Our  government  remonstrated,  without  avail,  to  the 
minister  w^ho  had  forg-otten  his  station  and  its  duties.  He 
persisted,    made    an    appeal    to   the   American   people 


THE     SCIENCE     OF     GOVERNMENT.  71 

tlirougli  the  press,  and  by  means  of  his  jDersonal  inter- 
course with  them,  addressed  the  president  of  the  United 
States  directly,  instead  of  submitting  his  communication 
to  and  through  the  secretary  of  state,  to  whom  all  diplo- 
matic agents  should  direct  their  official  correspondence. 
A  minister  in  this  particular  must  conform  to  the  pleas- 
ure and  will  of  the  country  to  which  he  is  commissioned. 
The  conduct  of  Genet,  in  these  and  in  other  particulars, 
was  so  gross,  that  the  United  States,  through  its  minister 
at  France,  requested  his  recall.  This  had  no  effect  upon 
his  deportment,  and  his  dismissal  was  recommended  by 
some  of  the  advisers  of  the  president;  by  other  advisers, 
this  course  was  resisted  as  harsh  and  unnecessary.  Wash- 
ington yielded;  against  his  inclination,  to  the  milder  coun- 
sel, and  thereby  compromised  the  self-respect  of  the 
nation.  After  some  months  had  elapsed,  subsequent 
to  the  request  for  a  recall,  France,  in  justice  to  itself, 
in  justice  to  the  law  of  nations,  and  to  the  decent 
respect  due  to  this  country,  recalled  its  minister  who  had 
violated  the  sovereignty  of  our  territory.*  In  September, 
1808,  during  the  presidency  of  Thomas  Jefferson,  the 
reception  of  Don  Onis,  the  minister  of  Spain,  was  refused, 
by  reason  of  the  insurgent  condition  of  Spain.  On  the 
5th  of  May,  1808,  Charles  IV.  ceded  all  his  titles  to  Spain 
and  its  dependencies  to  Napoleon.  The  authority  and 
title  of  Napoleon  was  resisted  by  those  who  were  in  favor 
of  the  old  royal  family.  By  treaty  made  December  8th, 
1813,  Napoleon  surrendered  his  supposed  title  to  Ferdi- 
nand VII.  of  Spain.  In  1815,  Don  Onis  was  received  by 
the  executive  as  minister  of  Spain.  In  1818,  the  recep- 
tion of  a  commercial  representative  of  the  republic  of 
Venezuela  was  refused,  because  his  name  had  been  affixed 

*  Hildreth,  Hist,  of  United  States,  2nd  series,  vol.  i,  cL.  6 ;  Ibid.  vol.  ii,  p.  90 ; 
2  Elliot,  Diplomatic  Code,  14,  15,  636. 


72  THE    SCIENCE     OF     GOVERNMENT. 

to  a  paper  drawn  up  in  the  United  States  purporting  to 
be  a  eonnni.ssion  to  a  public  officer  for  undertaking  and 
executing  an  expedition  in  violation  of  the  laws  of  the 
United  States,  and  also  because  he  had  signed  a  paper 
insulting  to  the  government. 

The  principles  applicable  to  pubUc  ministers,  as  recog- 
nized by  the  law  of  nations,  to  some  of  which  reference 
has  been  made,  have  been  acknowledged  and  upheld  by 
the  laws  of  the  United  States.  The  maintenance  of  these 
principles  has  been  confided  to  the  federal  government, 
so  as  to  preserve  uniformity  in  their  administration,  so  as 
to  prevent  any  embarrassment  in  the  external  intercourse 
and  relations  of  the  country.  The  constitution  of  the 
United  States  provides,  "  that  in  all  cases  affecting  ambas- 
sadors, other  public  ministers  and  consuls,  the  supreme 
court  shall  have  original  jurisdiction." 

A  statute  of  the  United  States  provides,  that  the 
supreme  court  shall  have  exclusively  all  such  jurisdiction 
of  suits  or  proceedings  against  ambassadors,  or  other  pub- 
lic ministers,  or  their  domestics,  or  domestic  servants,  as 
a  court  of  law  can  have  or  exercise  consistently  with  the 
law  of  nations;  and  original,  but  not  exclusive  jurisdic- 
tion, of  all  suits  brought  by  ambassadors  or  other  public 
ministers,  or  in  which  a  consul  or  vice-consul  shall  be  a 
party.  By  another  statute  it  is  provided,  "  that  if  any 
writ  or  process  shall  at  any  time  be  sued  forth,  or  prose- 
cuted by  any  person  or  persons,  in  any  of  the  courts  of 
the  United  States,  or  in  any  of  the  courts  of  a  particular 
state,  or  by  any  judge  or  justice  therein  respectively, 
whereby  the  person  of  any  ambassador,  or  other 
public  minister  of  any  foreign  prince  or  state,  au- 
thorised and  received  as  such  by  the  president  of  the 
United  States,  or  any  domestic,  or  domestic  servant,  of 
any  such  ambassador,  or  other  public  minister,  may  be 
arrested  or  imprisoned,  or  his  or  their  goods  or  chattels 


THE     SCIENCE     OF     GOVERNMENT.  73 

be  distrained,  seized,  or  attached,  such  suit  or  process  shall 
be  deemed  or  adjudged  to  be  utterly  null  and  void  to 
all  intents,  construction,  and  purposes  whatsoever." 

In  addition  to  these  provisions,  heavy  penalties  are  ini- 
f)osed  upon  any  person,  who  shall  violate  any  safe  con- 
duct or  passport  duly  obtained  and  issued  under  the 
authority  of  the  United  States,  or  shall  assault,  strike, 
wound,  or  in  any  other  manner  infract  the  law  of  na- 
tions, by  ofifering  violence  to  the  person  of  an  ambas- 
sador or  other  public  minister.^'' 

The  supreme  court  of  the  United  States,  in  its  adjud*- 
cations  upon  these  matters,  in  discussing  the  rights  of 
ambassadors,  is  guided  by  the  law  of  nations.  In  one 
case  the  court  say,  should  one  sovereign  enter  the  terri- 
tory of  another,  with  the  consent,  with  the  knowledge 
and  license  of  its  sovereign,  expressed  or  implied,  he  does 
not  thereby  subject  himself  to  its  jurisdiction.  Upon 
the  same  principle,  a  public  minister,  who  represents  his 
sovereign,  is  not  within  the  jurisdiction  of  the  sovereign 
at  whose  court  he  resides.f  These  principles  have  not 
been  extended  to  consuls,  who  are  regarded  as  commer- 
cial and  not  diplomatic  agents,  to  the  same  extent  as 
they  are  applied  to  ministers.  Consuls,  however,  enjoy 
immunities  equivalent,  so  far  as  their  relation  to  the 
duties  which  they  are  required  to  perform  render  them 
essential.  Consuls  have  power  to  claim  the  rights  of  pro- 
perty under  some  circumstances,  which  appertain  to  the 
citizens  of  the  country  which  they  represent,  to  institute 
legal  proceedings  in  relation  to  such  rights,  to  watch  over 
their  interests,  wherever  the  pursuits  of  commerce  may 
draw  them,  or  the  vicissitudes  of  human  affairs  may  force 
them.  J     They  have  the  protection  of  the  federal  juris- 

*  Stat,  at  Large,  U.  S.,  vol.  i.  pp.  18,  80, 117,  118. 

t  The  Schooner  Exchange  v.  McFadden,  7  Cranch,  116. 

t  The  Belle  Corunnes,  6  Wheat.  Rep.  152. 

10 


74  THE     SCIENCE     OF     GOVERNMENT. 

diction  and  its  courts,  in  the  assertion  or  defence  of  their 
civil  riirlits  ;  they  are  not  above  or  beyond  the  civil  or 
criminal  jurisdiction  of  the  country  in  which  they  reside.''' 

It  is  common  for  a  sovereign  to  employ  as  consuls  the 
subjects  or  citizens  of  the  country  in  which  they  are  to 
be  employed.  No  serious  difficulty  or  objection  can  arise 
from  this  course  ;  it  may  sometimes  be  a  convenience. 
It  is  also  competent  for  a  sovereign  to  select  as  ambas- 
sador or  public  minister  a  person  who  is  not  his  subject, 
but  is  a  citizen  of  some  other  country.  He  cannot,  for 
such  purpose  or  agency,  select  a  subject  or  citizen  of  the 
country  to  which  the  minister  is  to  be  accredited,  without 
the  consent  and  approbation  of  the  sovereign  to  which 
he  is  accredited.  Whether  the  president  of  the  United 
States  may  receive  a  citizen  of  this  country,  as  the 
minister  of  a  foreign  government,  and  concede  to  him 
the  immunities  of  tlie  station,  and  thereby  enable  a 
citizen  to  throw  off  his  allegiance,  may  be  regarded  as 
doubtful.  In  my  judgment,  a  citizen  cannot,  under  our 
system,  be  thus  successfully  expatriated  for  the  time  being, 
and  shielded  from  the  power  of  the  laws  and  institutions 
of  his  country. 

I  now  proceed  to  a  brief  consideration  of  another 
external  power  of  the  federal  government,  the  war-mak- 
ing power.  This  power,  by  the  constitution  of  the  United 
States,  is  conferred  upon  the  legislative  department. 
Congress  has  authority  to  declare  war,  grant  letters  of 
marque  and  reprisal,  and  make  rules  concerning  captures 
on  land  and  water  ;  to  raise  and  support  armies,  but  no 
appropriation  of  money  to  that  use  shall  be  for  a  longer 
term  than  two  years ;  to  provide  and  maintain  a  navy. 
It  may  also  provide  for  the  organizing,  arming,  and  dis- 


*  Davis  V.  Packard,  6  Peters,  S.  C.  Rep.  41  ;  same  case,  7  Ibid.  276. 


THE     SCIENCE     OF     GOVERNMENT.  75 

ciplining  the  militia,  and  for  governing  such  part  as  may 
be  employed  in  the  service  of  the  United  States,  reserv- 
ing to  the  states  the  appointment  of  the  officers/'' 

In  the  construction,  in  the  exercise  of  this  most  deli- 
cate power,  the  peculiarities  of  our  system  are  apparent. 
Checks  and  balances  are  provided,  designed  to  prevent 
any  hasty  or  unwise  exercise  of  it.  The  power  of  the 
people,  as  individuals,  is  clearly  and  distinctly  seen  and 
protected.  It  may  be  said,  that  they  exercise  the  ulti- 
mate judgment.  The  most  important  peculiarity  which 
is  exhibited  arises  from  the  fact,  that  the  war-making 
power  and  the  peace-making  power  are  not  exercised  by 
the  same  department.  Congress  may  declare  war.  The 
president,  with  the  consent  of  the  senate,  may  make  a 
treaty  by  which  the  war  shall  be  determined  and  peace 
restored.  Supplies  cannot  be  granted  for  more  than  two 
years,  unless  they  shall  be  renewed  by  new  enactments; 
during  which  period  of  time,  an  election  of  new  members 
must  take  place  for  the  house  of  representatives,  and  by 
such  election  the  policy  of  the  country  may  be  changed, 
and  a  refusal  of  supplies  for  a  continuance  of  the  war 
take  place ;  at  the  same  time  one  third  of  the  senate  will 
be  composed  of  new  members.  Another  feature  is  found  in 
the  respect  paid  to  the  militia,  by  authorizing  the  several 
states  to  appoint  its  own  officers,  so  that  the  citizen,  when 
called  into  the  combats  of  his  country,  is,  to  some  extent, 
under  the  protection  and  kindness  of  his  neighbor  and 
fellow-citizen,  the  business  of  whose  life  is  not  war  but 
peace.  These  checks  and  balances  demonstrate  our 
policy,  our  system ;  they  show  that  the  object  of  war  in 
this  country  is  not  the  maintenance  of  a  balance  of 
power ;  is  not  to  enlarge  or  aggrandize  our  empire,  or  to 


*  Constitution  of  the  United  States,  art.  i.  sec.  8. 


76  THE    SCIENCE     OF     GOVERNMENT. 

exhibit  the  star-spangled  banner  upon   the   battlements 
of  a  ibreign  citadel. 

These  checks  and  balances  exhibit  a  far  more  noble 
purpose.  They  exhibit  a  purpose  to  maintain  and  pre- 
^  serve  our  rights  as  a  nation,  the  perpetuation  of  our  in- 
stitutions, of  liberty  regulated  by  law.  The  purpose  is 
self-defence,  a  protection  from  the  encroachments,  from 
the  intervention  of  others,  upon  and  with  our  domestic 
affairs.  The  provisions  in  our  system  to  which  reference 
has  been  made,  are  equivalent  to  a  declaration  on  our 
part,  that  we  desire  to  cultivate  and  extend  our  friendly 
relations  and  intercourse  with  and  to  all  the  nations  of 
the  earth. 

The  war  of  the  revolution  was  justified,  and  is  justified, 
upon  principles  which  were,  and  are,  consistent  with  the 
desire  of  the  American  people  to  suffer,  to  do,  no  wrong. 
It  was,  in  fact,  approved  in  the  opinions  and  judgments  of 
the  most  considerate  statesmen  of  England  during  its 
existence,  so  far  as  they  could  rightfully  approve  an 
opposition  and  resistance  to  their  government  and  its 
policy.  The  war  of  1812  was  justified  at  the  time  by 
those  who  advocated  and  supported  the  policy  of  the 
country  upon  similar  princij^les  ;  and,  at  this  time,  it  may 
be  regarded  as  justified,  and  its  necessity  sustained  by 
the  general  judgment  of  the  country.  It  operated  as 
the  means  of  the  ultimate  abandonment  by  Great  Bri- 
tain, of  a  supposed  right  to  impress  the  seamen  of  our 
ships,  of  the  abandonment  of  her  claim  to  exercise,  in 
time  of  peace,  the  right  of  search. 

I  am  not  forgetful  of  the  fiict,  that  our  country  has 
been  engaged  in  other  and  more  recent  wars.  They 
have  not  been  so  mellowed  by  time  or  distance  as  to  be 
the  fit  subject  of  comment  here.  I  leave  them  untouched, 
to  be  discussed  at  some  other  time,  and  elsewhere.  In 
the  short  survey  which  has  been  shown  of  the  war-mak- 


THE     SCIENCE     OP     GOVERNMENT.  77 

ing  power,  you  will  readily  perceive  a  distrust  of,  au 
intent  to  guard  against,  the  executive  department.  The 
power  of  which  I  have  spoken,  regarded  in  its  ordinary, 
or,  if  I  may  so  say,  its  natural  character  and  purpose  ap- 
pertains to  the  executive  power  of  a  country,  and  it  has 
been  so  considered  by  writers  upon  political  economy. 
The  reason  is,  the  exigencies  of  the  state  may  be  urgent 
and  immediate.  Whenever  and  wherever  the  opera- 
tions of  a  state  are  conducted,  and  its  institutions  are 
established  for  the  benefit  of  the  state,  as  such,  indepen- 
dent of  the  interests  of  the  people  as  individuals  and 
citizens,  the  power  must  of  necessity  be  in  the  executive, 
in  the  head  of  the  nation,  so  as  to  admit  its  exercise 
imrestrained  and  unrestricted.  In  the  present  condition 
of  the  civilization  and  progress  of  society,  the  state  is 
regarded  as  identical  in  its  character  and  interests  with 
the  character  and  interests  of  the  people.  It  is  assumed, 
that  man  was  not  created  for  purposes  of  state,  but 
governments  are,  or  should  be,  made  and  established  for 
man.  This  fact  is  the  all-pervading  principle  of  our 
system.  It  is  manifest  in  every  part  of  its  construction. 
Equally  apparent  is  an  intent  or  design  to  guard  against 
any  sudden  or  impulsive  action  of  the  people  which  pas- 
sion or  caprice  might  produce. 

I  now  proceed  to  inquire,  whether  any  provision  is 
made  in  and  by  our  system  for  the  acquisition  of  terri- 
tory. This  is  a  matter  or  question  upon  which  politi- 
cians upon  the  one  side  and  upon  the  other  have  disagreed, 
adopting  actions  and  opinions  in  conformity  with  some 
supposed  temporary  party  policy.  It  is  equally  true, 
that  jurists  and  statesmen,  who  have  examined  the  sub- 
ject without  reference  to  party  considerations,  have  enter- 
tained and  expressed  opposite  views.  My  intention  and 
effort  is,  and  will  be,  to  regard  the  system  as  it  is,  unin- 
fluenced by  any  theory  which  might  be  considered  con- 
venient or  desirable. 


/5  THE    SCIENCE    OF    GOVERNMENT. 

Territory  is  acquired  by  discovery,  by  conquest,  or  by 
purchase.  It  is  the  right  of  society  to  prescribe  rules  by 
■which  property  may  be  acquired  and  preserved.  The 
title  to  laud  uuist  be  regulated  entirely  by  and  upon  the 
law  of  the  nation  within  whose  jurisdiction  it  is  situate. 
Those  who  profess  to  speak  and  act  only  as  moralists  may 
say,  that  land  is  especially  the  gift  of  God,  and,  therefore, 
a  nation  or  an  individual,  has  so  much  right  to  it  as  has 
any  other  nation  or  individual,  and  can  acquire  no 
greater.  This  is  an  unsafe  mode  of  reasoning,  and  forms 
no  part  of  any  system  of  political  economy  known  to 
civilized  nations.'-' 

Upon  principles  of  abstract  right,  independent  of 
society,  independent  of  the  progress  of  civilization  and 
of  Christianity,  it  would  seem  that  the  untutored  native 
or  occupant  of  a  country,  dependent  for  his  education, 
for  his  knowledge  of  right  and  wrong  upon  the  teachings 
of  the  Great  Spirit,  should  not  be  disturbed,  should  not 
be  compelled  to  yield  to  the  progress  and  convenience  of 
those  who,  in  their  own  opinion,  are  more  worthy,  more 
competent  to  carry  into  effect  the  supposed  purpose  of 
the  Creator  in  the  creation  of  man.  These  principles 
have  not  been  altogether  acted  upon,  or  entirely  disre- 
garded. The  acquisition  of  territory  by  discovery  has 
been  re2:arded  as  a  legitimate  mode,  and  certain  results 
or  risrhts  derived  therefrom  have  been  recoo:nized.  "  On 
the  discovery  of  the  American  continent,  the  great 
nations  of  Europe  were  eager  to  appropriate  to  them- 
selves so  much  of  it  as  they  could  respectively  acquire. 
Its  vast  extent  ollered  an  ample  field  to  the  ambition  and 
enterprise  of  all ;  and  the  character  and  religion  of  its 
inhabitants  afforded  an  apology  for  considering  them  as 
a  people  over  whom  the  superior  genius  of  Europe  might 

*  Johnson  v.  Mcintosh,  8  Wheat.  Kep.  543. 


THE     SCIENCE     OF     GOVERNMENT.  79 

claim  an  ascendency.  The  potentates  of  the  old  world 
found  no  difficulty  in  convincing  themselves  that  they 
made  ample  compensation  to  the  inhabitants  of  the  new, 
by  bestowing  on  them  civilization  and  Christianity,  in 
exchange  for  unlimited  independence.  But  as  they  were 
all  in  pursuit  of  nearly  the  same  object,  it  was  necessary, 
in  order  to  avoid  conflicting  settlements,  and  consequent 
war  with  each  other,  to  establish  a  principle,  which  all 
should  acknowledge  as  the  law  by  which  the  right  of 
acquisition,  which  they  all  asserted,  should  be  regulated 
between  themselves.  This  principle  was,  that  discovery 
gave  right  to  the  government  by  whose  subjects  or  by 
whose  authority  it  was  made  against  all  other  European 
governments,  which  title  might  be  consummated  by 
possession." 

Discovery  followed  by  possession  gives  to  the  nation 
making  the  discovery  the  sole  right  of  acquiring  the  soil 
from  the  natives,  and  establishing  settlements  upon  it. 
The  right  of  discovery,  as  described  and  as  exercised, 
when  applied  to  an  inhabited  country,  is  one  of  force. 
This  right  is  modified  and  softened  in  its  exercise,  by 
nations  professing  the  principles  of  Christianity,  so  far  as 
it  can  be,  without  defeating  the  purpose  of  the  discoverer. 

In  the  settlement  of  this  country,  in  the  establishment 
of  the  relations  which  grew  out  of,  and  resulted  from 
such  settlement,  the  rights  of  the  original  inhabitants 
have  not  been  entirely  disregarded,  although  to  a  great 
extent  they  have  been  diminished  and  impaired.  They 
were  admitted  to  be  the  rightful  occupants  of  the  soil, 
with  a  legal  as  well  as  just  claim  to  retain  possession  of 
it,  and  to  use  it  according  to  their  own  discretion ;  but 
their  rights  to  complete  sovereignty,  as  independent 
nations,  were  diminished,  and  their  power  to  dispose  of 
the  soil  at  their  own  will  to  whomsoever  they  pleased, 
was  denied  by  the  original  fundamental  principle  that 


so  THK     SCIENCE     OF     GOVERNMENT. 

discovery  gave  exclusive  title  to  those  who  made  it. 
Spain,  France,  Holland,  and  England  severally  claimed 
distinct  rights  upon  the  continent  of  America,  as  discov- 
erers. These  rights  to  a  very  large  extent  have  ceased, 
and  now  are  enjoyed  by  the  United  States.  In  the  treaty 
of  1783,  made  by  the  United  States  with  Great  Britain, 
she  relinquished  all  her  claim  to  the  government,  pro- 
priety, and  territorial  rights,  and  every  part  thereof,  in 
and  to  the  territory  of  her  former  colonies.  By  this 
grant,  political  power,  the  right  of  sovereignty,  so  well 
as  the  right  of  soil  was  conferred,  and  the  original  inhab- 
itants or  occupants  were  not  consulted  or  made  parties 
to  the  arrangement  by  which  their  rights,  by  which  their 
title  to  protection  were  transferred  from  one  nation  to 
another.  By  similar  grants,  the  European  governments 
are  almost  entirely  excluded  from  North  America.  In 
this  connection,  it  is  proper  to  say,  that  our  relations  with 
the  Indian  tribes,  has  been  as  liberal  and  humane  as  it 
could  have  been  without  an  abandonment  of  the  ric-lits 
of  discovery  to  which  we  have  succeeded.  In  all  our 
treaties  with  them,  they  have  been  recognized  as  the 
rightful  occupants  of  the  territory ;  we  have  negotiated 
with  them  as  domestic  but  dependent  nations,  have  con- 
ceded to  them  our  protection.  In  some  of  the  treaties 
made  by  the  United  States  with  these  tribes  before  the 
adoption  of  the  federal  constitution,  it  was  stipulated 
that  they  might  send  a  delegate  to  congress.  Whether 
the  privilege  was  in  any  instance  exercised,  I  am  unable 
to  sa}'.^-'  The  Indian  tribes  are  gradually  but  constantly 
receding,  under  a  moral  duress,  from  the  rising  to  the 
setting  sun.  Such  is  the  political  right,  such  is  the  prac- 
tical result  of  discovery.     The  acquisition  of  territory  by 


*  The  Cherokee  Nation  r.  The  State  of  Georgia,  5  Peters,  Sup.  Ct.  Rep.  1  ; 
Worcester  v.  Georgia,  6  Peters,  515. 

\ 


THE     SCIENCE     OF     GOVERNMENT.  81 

conquest,  is  simply  the  result  of  force,  by  which  the 
country  and  its  inhabitants  are  transferred,  with  or  with- 
out their  consent,  from  one  jurisdiction  to  another.  This 
right  is  continued  by  the  force  in  which  it  had  its  origin, 
and  determines  with  the  cessation  of  force,  unless  the 
country,  from  which  a  territory  may  have  been  arrested, 
shall  consent  to  a  merger  of  the  force,  by  a  cession  of  the 
land  and  its  sovereignty. 

The  acquisition  of  territory  in  this  mode  is  attended 
by  some  favorable  and  mitigating  considerations.  The 
conqueror  respects  the  private  right  of  the  citizens  of  the 
conquered  country  to  property.  The  original  laws  of 
the  conquered  country  are  in  force,  until  new  laws  and 
rules  shall  be  established  by  the  conqueror,  except  so  far 
as  they  may  be  inconsistent,  and  incompatible  with  the 
fundamental  law  of  the  nation  by  which  the  conquest 
shall  have  been  made.  By  conquest  the  former  sove- 
reignty is  suspended,  and  so  continues  until  restored  by 
the  conqueror,  or  until  it  is  lost  by  the  cession  of  the 
former  proprietor,  expressed  by  compact,  or  implied  from 
his  abandonment  of  all  effort  to  regain  his  possession.* 
Upon  this  branch  of  international  law,  the  supreme  court 
of  the  United  States  has  vindicated  and  enforced  the 
propriety  of  the  humane  princijDles  upon  which  the  law 
of  conquest,  in  modern  times,  has  been  enforced. 

The  court  say,  it  is  unusual,  even  in  cases  of  conquest, 
for  the  conqueror  to  do  more  than  to  displace  the  sove- 
reign, and  assume  dominion  over  the  country.  The  mod- 
ern usage  of  nations,  which  has  become  law,  would  be 
violated ;  that  sense  of  justice  and  of  right,  which  is 
acknowledged  and  felt  by  the  whole  civilized  world  would 
be  outraged,  if  private  property  should  be  generally  con- 
fiscated and  private  rights  annulled.     The  people  change 


*  The  United  States  v.  Hayward,  2  Galli.  Rep.  485. 
11 


82  THE    SCIENCE    OF    GOVERNMENT. 

their  allegiance  ;  their  relation  to  their  ancient  sovereign 
is  dissolved ;  but  their  relation  to  each  other  and  their 
rights  of  property  remain  undisturbed.  A  cession  of 
territory  by  one  sovereign  to  another,  is  never  understood 
to  be  a  cession  of  the  property  belonging  to  its  inhabi- 
tants.=^ 

Another  mode  of  acquiring  territory  is  by  purchase ; 
the  course  and  effect  of  which  is  familiar,  and  need  not 
be  repeated.  It  gives  rise  to  only  one  question  of  im- 
portance, which  is  of  a  moral  character.  This  question 
is,  upon  what  princijDle  of  right  or  reason  can  a  sovereign, 
without  necessity,  upon  his  own  motion,  transfer  a  portion 
of  his  territory  and  its  inhabitants  to  another  jurisdiction 
against  their  consent.  It  is  not  essential  to  the  purpose 
for  which  reference  has  been  made  to  these  different 
modes  of  acquiring  territory,  to  discuss  the  question  sug- 
gested. I  have  referred  to  them  and  to  their  principal 
incidents,  for  the  purpose  of  inquiring  whether  the  fede- 
ral or  state  governments  can  rightfully  and  without  vio- 
lence to  our  system,  acquire  new  territory,  in  either  of 
the  modes  pointed  out;  and  if  these  governments  or 
either  of  them  can  so  acquire  territory,  under  what  cir- 
cumstances it  may  be  done. 

The  several  state  governments,  when  the  federal  con- 
stitution was  adopted,  had  certain  definite  territory,  the 
bounds  of  which  were  supposed  to  have  been,  de  jure, 
well  defined,  and  capable  of  demarcation.  Whenever 
new  states  have  been  admitted,  their  territorial  limits 
have  been  defined,  in  terms  and  by  limits  capable  of 
ascertainment. 

The  several  states,  as  independent  sovereignties,  can- 
not acquire  new  and  additional  territory  by  discovery  or 
by  conquest.     They  cannot  enlarge  their  several  domains 

*  The  United  States  v.  Perchman,  7  Peters'  Rep.  86,  87. 


THE    SCIENCE    OF     GOVERNMENT.  83 

in  either  of  these  modes.  If  such  rights  can  be  exer- 
cised under  our  system,  they  aj)pertain  to  the  national 
government.  Equally  clear  it  is,  that  the  several  states 
cannot  by  purchase  extend  their  sovereignty,  or  that  of 
the  United  States,  over  new  territory,  with  or  without  its 
inhabitants.  The  construction  and  purpose  of  our  sys- 
tem forbids.  The  clause  in  the  constitution  of  the 
United  States  which  regulates  the  admission  of  new 
states,  in  its  effect,  must  be  regarded  as  prohibitory  of 
the  acquisition  by  the  several  states  of  additional  terri- 
tory, without  the  consent  of  congress.'^'  In  any  and  every 
discussion  of  the  subject  under  consideration,  the  princi- 
ples of  political  economy,  distinct  from  mere  party  poli- 
tics, should  be  regarded,  as  they  are  modified  by  our 
peculiar  institutions.  I  refer  to  the  acquisition  of  terri- 
tory and  of  its  sovereignty,  for  the  purpose  and  as  the 
means  of  enlarging  and  extending  our  political  rights 
and  our  sovereignty.  In  this  sense  and  for  such  purpose, 
the  several  states  have  no  right  to  acquire  new  and  addi- 
tional territory.  I  do  not  intend  to  say,  that  a  state  gov- 
ernment cannot  acquire  the  title,  the  right  of  property 
in  and  to  soil,  in  and  to  land  within  its  limits,  or,  in  some 
instances,  without  its  limits.  This  right  may,  imdoubtedly, 
under  some  circumstances  and  for  some  purposes,  be 
rightfully  exercised. 

The  question,  considered  with  reference  to  the  power 
of  the  federal  government,  must  be  determined  by  a  con- 
struction of  its  constitution.  This  instrument,  excluding 
the  right  of  amendment  and  the  power  of  revolution, 
cannot  be  enlarged  or  diminished  by  the  united  will  of 
the  people  or  by  the  united  voice  of  the  several  states  as 
sovereignties,  or  by  both  combined.  It  is  the  opinion  of 
some  individuals,  that   the   constitution   of  the  United 

*  Constitution  of  United  States,  art.  iv.  sec.  3. 


84  THE     SCIENCE     OF     GOVERNMENT. 

States  should  be  construed  with  great  strictness  and 
exactness ;  that  no  enlargement  can  rightfully  result  from 
any  mere  legal  intendment  or  logical  deduction  ;  that  its 
language  is  to  be  literally  construed ;  that  no  power, 
unless  conferred  in  express  terms,  can  be  exercised. 
Some  entertain  a  different  opinion,  and  contend,  that  it 
should  receive  an  open,  liberal,  and  enlarged  construction ; 
that  it  may,  by  intendment,  by  deduction,  be  made  avail- 
able to  carry  out  this  or  that  purpose ;  that  this  country 
is,  in  fact,  an  example  and  propounder  of  free  institutions, 
of  free  principles ;  that  our  system  was  and  is  designed 
to  uphold  these  institutions  and  these  principles  at  home 
and  abroad ;  that  the  genius  of  America  has  no  limit. 
Neither  of  these  positions  are  sound. 

The  constitution  of  the  United  States  is  to  be  con- 
strued, its  meaning  and  its  powers  ascertained,  upon  and 
by  the  same  principles  of  construction,  by  and  upon  which 
the  force  and  effect  of  any  other  instrument  is  to  be 
ascertained  and  determined.  These  principles  are  well 
understood,  although  their  application  may  be  occa- 
sionally a  matter  of  difficulty  and  embarrassment.  In- 
struments are  to  be  construed  by  an  interpretation  of  the 
terms  contained  therein,  by  the  subject-matter  or  pur- 
pose sought  to  be  attained ;  by  a  consideration  of  the 
relation  which  the  parties  to  the  instrument  bear  to  each 
other.  These  constitute  the  prominent  elements  of  con- 
struction. The  language  of  an  instrument,  as  a  general 
and  primary  proposition,  is  to  be  understood  according  to 
its  natural,  ordinary  import,  as  received  and  recognized 
by  those  whose  language  it  is.  In  some  cases,  it  may 
have  a  technical  meaning  deduced  from  an  artificial  im- 
port given  to  it  when  used  in  explanation  of  the  arts  of 
science  or  law.  The  purpose  of  an  instrument  is  to  be 
accomplished  and  carried  into  effect,  if  it  legally  may  be. 
Language  will  receive  a  liberal  construction,  whenever 


THE     SCIENCE     OF     GOVERNMENT.  85 

such  construction  is  essential  to  uphold  public  institutions 
and  public  right.  On  the  other  hand,  when  the  purpose 
of  an  instrument  is  in  derogation  of  private  right,  is  to 
the  prejudice  of  such  right,  a  close  construction  is 
adopted.  The  relation  which  the  parties  to  an  instru- 
ment bear  to  each  other,  may  be  referred  to  and  con- 
sidered for  the  purpose  of  ascertaining  whether  any  pro- 
posed construction  or  result  is  or  is  not  in  harmony  with 
the  rights  and  duties  naturally  and  ordinarily  compatible 
with  such  relation,  with  such  condition  of  the  parties. 

The  importance  of  the  relation  which  contracting 
parties  bear  to  each  other,  as  a  means  by  which  to  ascer- 
tain their  relative  rights,  and  the  extent  thereof,  will  be 
conceded,  if  you  direct  your  attention  to  some  of  the  busi- 
ness transactions  of  life  with  which  you  are  conversant 
and  familiar.  An  agent  may,  unless  specially  restricted 
and  forbidden,  employ  such  modes  and  means  of  action, 
by  which  to  accomplish  the  purpose  of  his  agency,  as  are 
commonly  and  ordinarily  regarded  fit  and  convenient  to 
such  procuration.  A  principal  may  ordinarily  direct  the 
action  of  his  agent,  may  enlarge,  diminish,  or  determine 
the  agency  at  pleasure.  A  principal  may  create  an 
agent  with  a  power  or  authority  attending  it  irrevocable. 
In  such  case,  within  the  limit  of  the  agency,  the  power  of 
the  principal  cannot  be  regained,  unless  and  until  the 
object  of  the  power  is  accomplished  or  compensated. 

The  power  of  an  agent  may  be  enlarged,  in  some  in- 
stances, by  necessity. 

The  master  of  a  ship  sent  upon  a  foreign  voyage  is 
authorized  to  sail  the  vessel  in  the  employment  desig- 
nated by  the  owner,  and  is  bound  to  return  at  the  end  of 
the  voyage  or  other  authorized  period.  In  the  course  of 
such  authorized  employment,  and  before  its  contemplated 
determination,  the  ship,  in  some  distant  place,  may  be 
disabled,  to  such  an  extent  and  under  such  circumstances 


8G  TnE     SCIENCE     OF     GOVERNMENT. 

as  to  authorize  a  i^ale  of  the  vessel  by  the  master  ;  in  such 
instance  the  power  of  the  agent,  of  tlie  master,  is  from 
necessity  enlarged,  to  an  extent  coextensive  with  the 
exigency  of  his  condition,  and  of  the  proj^erty  in  his  pos- 
session. It  is  not  my  intention,  by  this  illustration,  to 
approve  a  very  common  expression,  that  necessity  knows 
no  law,  because  it  is  certain  that  the  law  does  not  and 
cannot  regard  such  necessity.  The  same  principles  are 
also  applied  to  matters  of  trust.  The  trustee  must  fol- 
low the  deed  of  trust,  the  charter  or  authority  under  and 
by  which  his  trust  may  have  been  created  or  defined. 
He  may,  however,  whenever  he  acts  in  the  absence  of 
special  restrictions,  employ  the  most  convenient  and 
suitable  means  of  executing  his  trust.  The  power  and 
authority  of  a  trustee  will  be  construed,  unless  some  clear 
legal  ground  of  objection  exists,  so  as  to  uphold  the  intent 
and  purpose  of  the  trust. 

A  fee-simple  or  perfect  indefeasible  title  to  land  can- 
not ordinarily  be  acquired,  except  by  the  use  of  certain 
known  technical  terms.  Notwithstanding  the  truth  and 
propriety'  of  this  general  position,  if  a  trustee  is  charged 
with  the  performance  of  a  certain  duty  clearly  pointed 
out,  and  the  estate  granted  to  him  for  the  purpose  of  the 
trust,  if  technically  considered,  is  not  sufficient  for  its 
accomplishment,  the  estate  is  enlarged  by  intendment,  to 
prevent  and  avoid  a  failure  of  the  trust,  which  might 
otherwise  occur.  A  flictor,  intrusted  by  a  foreign  corre- 
spondent with  the  sale  of  goods,  if  not  restricted,  may  sell 
upon  credit,  if  such  is  the  usage  of  similar  agencies  at  the 
place  of  the  residence  of  the  fjictor.  These  principles,  by 
which  private  agencies  and  private  trusts  are  made  avail- 
able and  effectual,  are  applicable  to  public  agencies  and 
trusts.  Upon  a  reasonable  and  legitimate  application  of 
these  principles  to  public  trusts,  to  the  trusts  of  govern- 
ment, the  question  arises,  Can  the  federal  government 


THE     SCIENCE     Of     GOVERNMENT.  87 

rightfully  and  constitutionally  acquire  new  and  addi- 
tional territory,  new  and  additional  sovereignty,  and 
thereby  enlarge  its  domain,  for  the  purpose  of  increasing 
its  sovereignty,  its  political  power,  or  for  the  purpose  of 
extending  the  area  of  freedom,  of  free  institutions  ?  The 
same  question  may  be  proposed  in  different  language, 
more  decisive  in  its  efiect  uj)on  the  mind.  Suppose  the 
government  of  Great  Britain,  entertaining  the  belief  that 
its  colonies  upon  the  American  continent  are  not  worth 
the  cost  of  preservation ;  or  for  any  other  reason  satis- 
factory to  itself,  should  propose  to  sell  and  transfer  its 
sovereignty  in  and  over  them  to  the  United  States  for  a 
stipulated  sum  of  money,  can  the  federal  government 
make  the  purchase  and  assess  its  citizens  by  direct  taxa- 
tion, or  by  applying  the  proceeds  of  the  j^ublic  lands,  or 
by  using  other  money  in  the  treasury  of  the  United 
States  for  such  purpose  ?  The  answer  to  this  inquiry,  in 
either  form  in  which  it  has  been  stated,  must  most  cer- 
tainly and  unequivocally  be,  that  the  federal  govern- 
ment has  no  such  power  derived  from  any  express  pro- 
vision in  the  constitution,  or  from  any  legal  intendment 
which  can  be  constitutionally  deduced  from  its  terms  or 
from  its  purpose.  Another  mode  of  acquiring  territory 
and  its  sovereignty,  is  by  discovery.  Citizens  of  the 
United  States  may  discover  some  land,  and  take  posses- 
sion thereof  under  circumstances  which,  by  the  law  of 
nations,  would  authorize  the  United  States  to  assert  title 
as  the  first  discoverer.  Has  the  federal  government 
power,  under  such  circumstances,  to  assume  and  exercise 
its  supposed  right  as  discoverer,  establish  territorial  or 
colonial  governments  dependent  upon  and  subsidiary  to 
its  own  jurisdiction,  and  ultimately  admit  the  territory  so 
discovered  as  a  state  of  the  union  ?  It  is  clear  to  my 
mind,  that  the  constitution  of  the  United  States  confers 
no  such  authority.    In  the  instances  suggested,  the  acqui- 


88  THE    SCIENCE     OF     GOVERNMENT. 

sition  of  territory,  by  purchase  in  the  one  case,  by  dis- 
covery in  the  other,  might  be  an  advantage  to  the  United 
States.  Such  acquisition  would  extend  the  privileges 
which  our  institutions  are  designed,  are  competent  to 
confer. 

If  the  people,  through  their  agent  and  representative, 
the  government,  or  by  an  expression  of  opinion  through 
the  press,  and  voluntary  conventions,  are  content ;  if  the 
several  states  as  sovereignties  are  satisfied,  why  not 
accomplish  a  great  and  good  purpose  ?  The  people  are 
the  government,  and  their  will  is  its  law.  Reasoning  of 
this  character  may  be  adopted  in  abundance,  and  it  may 
be  plausible,  and  even  satisfactory  to  many  minds.  In 
my  view  it  is  erroneous,  fallacious,  and  dangerous.  Our 
system,  as  I  have  repeatedly  said,  —  and  the  proposition 
cannot  be  repeated  too  often,  —  is  limited.  It  was  estab- 
lished for  our  protection,  and  not  for  the  protection,  ele- 
vation, or  advancement  of  other  people,  of  other  coun- 
tries, except  so  far  as  they  may  be  enlightened,  admon- 
ished, and  improved  by  our  moral  example  and  influence. 
The  will  of  the  people  cannot  be  known,  cannot  be 
exercised  upon  or  through  the  government,  except 
through  and  by  the  machinery  and  working  of  its  insti- 
tutions, which  they  have  established  as  checks  upon 
themselves  and  upon  the  government.  The  power  of 
congress  to  extend  its  sovereignty,  to  acquire  new  terri- 
tory, merely  because  such  extension  and  acquisition 
would  be  convenient  or  desirable  by  conquest,  has  never, 
to  my  knowledge,  been  asserted. 

An  examination  of  the  federal  system  of  government, 
will  show  that  the  acquisition  of  territory  and  sovereignty, 
is  not  in  express  terms  authorized  or  suggested.  It  does 
not  appear  to  be  one  of  the  objects  for  which  the  consti- 
tution was  adopted.  If  the  instrument  is  to  receive  a 
close,  strict  construction  ;  if  its  language  is  to  be  literally 


THE     SCIENCE     OF     GOVERNMENT.  89 

understood,  excluding  every  intendment  which  may  be 
deduced  from  the  general  object  of  government,  or  from 
the  peculiar  situation  in  which  the  country  may  at  any 
time  be  placed ;  then,  the  federal  government  cannot 
enlarge  its  territory,  or  extend  its  jurisdiction  under  any 
circumstances.  Cases  may  arise  in  which  such  a  result 
would  be  disastrous,  and  even  might  be  fatal  to  the  sys- 
tem. If  this  is  the  only  theory  which  can  be  adopted, 
the  action  of  the  government  in  transactions  which  have 
passed,  in  several  instances,  cannot  be  sustained.  Terri- 
tory has  been  acquired  from  Mexico,  by  conquest,  per- 
fected by  cession.  The  territory  which  constitutes  the 
state  of  Louisiana  was  acquired  by  treaty  made  with 
France,  30th  April,  1803,  by  which  the  then  colony  or 
province  of  Louisiana  was  ceded  by  the  French  consul 
to  the  United  States,  forever  and  in  full  sovereignty,  with 
all  its  rights  and  appurtenances,  as  fully  and  in  the  same 
manner  as  they  had  been  acquired  by  the  French  Repub- 
lic. In  consideration  of  this  cession,  the  United  States 
paid  to  France  eleven  and  a  quarter  millions  of  dollars, 
and  agreed  to  pay  certain  debts  due  from  France  to  citi- 
zens of  the  United  States,  which  existed  prior  to  the  30th 
of  September,  1800.  This  territory,  rightfully  or  wrong- 
fully, now  constitutes  one  of  the  states  of  the  federal 
union.  This  cession  of  territory  put  an  end  for  the  time 
being  to  controversy  between  the  United  States  and 
France,  added  a  beautiful  and  valuable  tract,  and  removed 
the  danger  which  might,  and  probably  would  have  re- 
sulted from  its  continuation  in  the  occupation  of  those 
who  were  alien  in  blood,  alien  to  our  institutions  and 
interests.  This  cession  was  approved  at  the  time  by  some 
portion  of  the  community,  by  another  condemned  in 
terms  of  unmeasured  severity.  Its  constitutional  pro- 
priety was  advocated  and  maintained  upon  the  ground 
that  "the  people  of  the  United  States,  in  the  establish- 

12 


90  TIIK     SCIENCE     OF     GOVERNMENT. 

raent  of  its  constitution,  intended  to  provide  for  the  com- 
mon defence,  promote  the  general  welfare,  insure 
domestic  tranquillity,  and  secure  the  blessings  of  liberty 
to  themselves  and  posterity /=' 

These  words,  which  are  found  in  the  preamble  to,  and 
I  also  in  the  constitution  standing  alone,  cannot  be  regarded 
as  a  positive  or  an  express  authority  to  the  federal  gov- 
ernment to  extend  its  territory  or  jurisdiction,  under  any 
and  all  circumstances.  They  may  be  considered,  under 
some  aspect  or  condition  of  things,  as  having  a  bearing 
upon  the  construction  or  purpose  of  other  provisions,  or 
upon  the  exercise  and  execution  of  certain  admitted 
powers  of  the  federal  government.  The  acquisition  of 
Louisiana  was  upheld  by  its  advocates,  under  the  power 
of  congress  to  admit  new  states.f  "  New  states  may  be 
admitted  by  the  congress  into  this  union ;  but  no  new 
state  shall  be  formed  or  erected  within  the  jurisdiction  of 
any  other  state;  nor  any  state  be  formed  by  the  junc- 
tion of  two  or  more  states  or  parts  of  states,  without 
the  consent  of  the  legislatures  of  the  states  concerned, 
as  well  as  of  the  congress.  The  congress  shall  have 
power  to  dispose  of,  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  be- 
longing to  the  United  States."  Such  is  the  language  of  the 
constitution  upon  the  subject  of  the  admission  of  new  states, 
and  the  management  of  territory  belonging  to  the  United 
States.  An  examination  of  the  discussion  upon  the 
subject-matter  of  this  provision,  which  w-as  had  in  the 
convention  by  which  the  constitution  was  prepared,  will 
show  that  it  had  not  in  its  origin  or  purpose,  any  bearing 
upon  the  acquisition  of  new  and  additional  territory.  It 
was  designed  by  those  who  made  it,  to  regulate  the  terri- 
tory which  at  the  time  belonged  to  the  United  States  or 

*  Constitution  of  United  States,  art.  i.  sec.  8.  t  Ibid.  art.  iv.  soc.  3. 


THE     SCIENCE     OF     GOVERNMENT.  91 

to  the  several  states.  The  discussion  may  be  read  in  the 
Madison  Papers.*  An  examination  of  the  provision,  with- 
out reference  to  any  supposed  purpose  or  opinion  which 
was  entertained  by  those  who  prepared  it,  will  lead  to  the 
same  conclusion. 

There  are  other  provisions  in  the  constitution  to  which, 
in  this  connection,  no  reference  has  been  made,  from 
which  the  power  and  authority  of  the  federal  government 
to  acquire  additional  territory,  and  a  consequent  enlarge- 
ment of  its  sovereignty,  must  be  derived,  or  it  has  no 
existence.  These  provisions  do  not  in  express  terms,  or 
in  their  primary  and  principal  purpose,  contemplate  such 
acquisition,  but  may  under  particular  circumstances  be 
regarded  as  sufficient  authority.  The  constitution  pro- 
vides that  the  United  States  shall  guarantee  to  every 
state  in  the  union,  a  republican  form  of  government ;  and 
shall  protect  each  of  them  against  invasion,  and  against 
domestic  violence.f  Congress  has  power  to  declare  war, 
grant  letters  of  marque  and  reprisals,  and  make  rules 
concerning  captures  on  land  and  water.J  The  president, 
by  and  with  the  advice  and  consent  of  the  senate,  two 
thirds  of  the  senators  present  concurring,  has  power  to 
make  treaties.§  Congress  is  authorized  "to  make  all 
laws  which  shall  be  necessary  and  proper  for  carrying 
into  execution  its  express  powers,  and  all  other  powers 
vested  by  the  constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof."  || 

These  provisions  are  in  terms  general.  The  means  by 
which  the  invasion  of  a  state  may  be  resisted  and 
repelled ;  the  time  when,  and  the  purpose  for  which  war 
shall  be  declared ;  the  implements  of  warfare  which  may 


*  Madison  Papers,  vol.  ii.  pp.  1240,  1241;    Ibid.  vol.  iii.  p.  1456,  ef  seq. ; 
Story  on  Con.  U.  States,  book  3,  cb.  27,  Abridgment. 

t  Constitution  of  U.  States,  art.  iv.  sec.  4.  J  Ibid.  art.  i.  sec.  8. 

^  Ibid.  art.  ii.  sec.  2.  ||  Ibid.  art.  i.  sec.  8. 


92  THE     SCIENCE    OF     GOVERNMENT. 

be  adopted  ;  the  circumstances  under  -which  a  treat}^  may 
be  made ;  the  stipulations  and  provisions  -which  may  be 
inserted  tlierein,  are  undefined,  are  left  open  to  the  dis- 
cretion of  those  by  ^vhom  they  are  to  be  used  and 
adopted.  They  are  not,  however,  -without  limit.  They 
must  be  controlled  by  the  purpose,  by  reference  to  other 
powers  contained  in  the  constitution,  by  the  general 
policy  and  intent  of  the  system  of  government,  which 
the  constitution  has  established. 

The  discretion  to  be  exercised  in  these  matters  may 
well  be  designated  a  legal,  and  not  an  indefinite  or  capri- 
cious discretion.  The  principles  of  construction  ordi- 
narily applied  in  the  ascertainment  of  the  meaning  of  a 
private  instrument,  of  the  powers  and  duties  of  agents  and 
of  trustees,  to  which  reference  has  been  made,  and  illus- 
trations have  been  given,  are  to  be  applied  to  the  provi- 
sions which  have  been  recited. 

In  the  language  of  the  supreme  court  of  the  United 
States,  the  government  which  has  a  right  to  do  an  act, 
and  has  imposed  on  it  the  duty  of  performing  that  act, 
must,  according  to  the  dictates  of  reason,  be  allowed  to 
select  the  means ;  and  those  who  contend  that  it  may  not 
select  any  appropriate  means,  that  any  particular  mode 
of  effecting  the  object  is  excepted,  take  upon  themselves 
the  burden  of  estabHshing  that  exception.  The  powers 
of  government  were  intended  to  endure  for  ages  to  come, 
to  be  adapted  to  the  various  crises  of  human  affairs.  To 
have  prescribed  the  means  by  which  government  should 
in  all  future  time  execute  its  powers,  would  have  been 
to  change  entirely  the  character  of  the  instrument.  It 
would  have  been  an  unw^ise  attempt  to  provide  by  im- 
mutable rules,  for  exigencies  wdiich,  if  foreseen  at  all, 
must  have  been  seen  dimly,  and  which  can  be  best  pro- 
vided for  as  they  occur.* 


*  McCuilock  V.  The  State  of  Maryland,  4  Wheat.  Rep.  316. 


THE    SCIENCE     OF     GOVERNMENT.  93 

These  principles  are  applicable  to  a  consideration  of 
the  authority,  actual  or  supposed,  of  the  federal  govern- 
ment, to  enlarge  its  territorial  limits  and  sovereignty.  A 
territory,  foreign  to  the  union,  adjoining  a  state  which 
belongs  to  it,  may  be  inhabited  by  a  race  of  people  bar- 
barous, uneducated,  regardless  of  all  law,  human  or 
divine. 

Such  people  may  make  constant  inroads  upon  the 
citizens  and  property  of  such  state  to  an  extent  which,  if 
continued,  might  produce  its  destruction. 

In  such  case  the  federal  government  is  competent  to 
repel  the  invasion,  and  by  its  compact  to  preserve  the  in- 
tegrity of  the  several  states,  would  be  bound  to  resist,  to 
repel  it,  and  prevent  its  recurrence. 

A  case  of  this  description,  of  an  urgent,  of  an  extreme 
character,  may  arise,  in  which  the  preservation  of  a  state 
of  the  union  would  require  the  conquest  and  subjection 
of  an  adjoining  people,  perfected  by  a  cession,  or  by  con- 
tinued forcible  possession  of  its  territory.  Under  the  cir- 
cumstances supposed,  the  power  and  duty  of  the  federal 
government  is  clear.  If  they  are  not,  the  government 
and  its  system  are  futile  and  useless. 

Self-preservation  is  a  law  of  nature,  of  individual  man, 
and  of  society,  but  it  is  something  more  than,  and  distinct 
from,  mere  convenience  or  ordinary  necessity.  Another 
state  of  facts  may  be  supposed  for  the  purpose  of  illustra- 
tion. A  foreign  government  may  have  encroached  upon 
our  rights,  disregarded  our  sovereignty,  seized  the  ships 
and  property  of  our  citizens,  in  violation  of  the  law  of 
nations,  not  in  a  single  instance  only,  not  by  accident, 
but  by  design,  in  repeated  instances,  and  in  disregard  of 
objection  and  admonition  on  our  part. 

The  United  States  would  be  entitled  to  an  indemnity 
for  such  injuries,  to  a  compensation  for  the  wrong  im- 
posed.    In  such  case,  under  such  circumstances,  it  may 


94  THE    SCIENCE     OF     GOVEKNMENT. 

be  lit  and  competent  for  the  federal  government  to  re- 
ceive such  indemnity,  such  compensation,  by  a  cession  of 
the  territory,  or  of  some  portion  of  the  territory  of  the 
party  offending. 

Other  iUustrations  of  the  principle  suggested  will 
readily  occur  to  those  who  examine  and  reflect  upon  the 
subject. 

If  the  cession  of  Louisiana  and  of  other  territory  which 
has  been  annexed  to  our  domain  was  rightfully  and  con- 
stitutionally accepted ;  if  additional  territory  and  its 
sovereignty  may  be  acquired  by  the  federal  government, 
it  must  be  sustained  under  the  treaty-making  and  war- 
making  powers,  or  under  one  of  them.  These  powers 
cannot  constitutionally  be  applied  for  the  mere  purpose 
or  pretext  of  such  acquisition ;  but  when  legally  and  pro- 
perly exercised,  they  may  lead  to  such  acquisition  as  an 
incident  to,  or  result  of,  their  rightful  exercise. 

No  danger  can  be  apprehended  from  the  view  which 
has  been  presented,  because,  as  has  been  shown,  the 
war-making  and  treaty-making  powers  are  distinct,  and 
operate  as  checks  upon  each  other.  They  cannot  be  ex- 
ercised so  as  to  produce  the  acquisition  of  territory,  with- 
out the  concurring  action  of  the  executive  and  legisla- 
tive departments. 

The  security,  the  interests  of  the  country,  cannot  be 
destroyed  or  hazarded  by  the  exercise  of  the  authority 
under  consideration,  except  by  the  corruption,  inca- 
pacity, or  want  of  fidelity  of  two  departments,  over  which 
the  people,  through  and  by  means  of  the  executive 
franchise,  have  the  ultimate  power  and  control. 

The  treaty  by  which  Louisiana  was  ceded  to  the 
United  States,  exhibits  the  force  and  effect  of  the  limita- 
tions which  are  found  to  exist  throughout  our  entire 
system  of  government.  By  this  treaty  it  was  stipulated, 
in  behalf  of  the  United  States,  that  the  inhabitants  of  the 


THE    SCIENCE     OF     GOVERNMENT.  95 

ceded  territory  should  be  incorporated  in  the  union  of 
the  United  States,  should  be  admitted  so  soon  as  possible, 
according  to  the  principles  of  the  federal  constitution,  to 
the  enjoyment  of  all  the  rights,  advantages,  and  immu- 
nities of  citizens  of  the  United  States,  and  in  the  mean 
time  should  be  maintained  and  protected  in  the  free  en- 
joyment of  their  liberty,  property,  and  the  religion  which 
they  professed  *  Upon  the  ratification  of  the  treaty,  an 
act  of  congress  v^as  passed  for  the  admission  of  a  portion 
of  it  into  the  union  as  a  state,f  which  could  not  have  been 
accomplished  by  an  unaided  exercise  of  the  treaty-mak- 
ing power.  Territory  has  been  acquired  by  the  United 
States  from  some  of  the  Indian  tribes  by  purchase,  unin- 
fluenced by  considerations  similar  to  those  which  have 
operated,  in  the  acquisition  of  territory,  under  other  and 
different  circumstances.  Such  acquisition  from  the  origi- 
nal native  inhabitants  stands  upon  its  own  peculiar 
features. 

The  federal  government,  as  assignee  of  and  as  successor 
to  the  title  of  the  first  discoverers,  has  always  considered 
the  fee-simple  in  the  soil,  the  supreme  sovereignty  over 
the  territory  occupied  by  the  Indians,  as  vested  in  itself, 
the  Indians  having  the  right  of  possession,  of  occupancy 
without  the  power  of  sale,  to  any  purchaser,  except  the 
United  States  or  some  person  buying  under  its  consent 
and  approbation.  These  acquisitions,  therefore,  are  to  be 
regarded  merely  as  an  extinguishment  of  an  incum- 
brance upon  the  land,  as  the  release  in  fact  of  a  qualified 
interest,  which  the  occupants  had  held  as  matter  of  grace 
and  humanity,  and  not  as  an  absolute  right.  By  these 
purchases  the  United  States  acquire  no  additional 
sovereignty. 


*  Elliot,  Diplomatic  Code,  vol.  i.  p.  110. 
t  Stat,  at  Large,  U.  S.,  vol.  ii.  pp.  245,  701. 


96  THE     SCIENCE     OF     GOVERNMENT. 

The  United  States,  in  its  quasi  corporate  capacity,  may 
acquire  the  ownersliip  of  soil  Avitliin  it.s  own  jurisdiction, 
and  I  have  no  doubt  Avithout  its  jurisdiction,  for  forts, 
arsenals,  storehouses,  or  other  public  purposes,  excluding 
or  admitting,  as  the  case  may  be,  certain  qualified  rights 
of  a  state,  whenever  the  soil  is  within  its  limits. 

The  United  States  may  also  acquire,  in  payment  of 
debts  due  to  them,  the  ownership  of  soil.  Purchases  of 
this  kind  have  been  sustained  upon  principles  and  rea- 
soning identical  with  those  which  have  been  suggested 
as  applicable  to  the  acquisition  of  foreign  territory  and 
of  its  sovereignty.  In  a  recent  case,  the  supreme  court 
of  the  United  States  have  said,  "  to  deny  to  the  United 
States  the  power  to  take  security  for  a  debt  due  to  them 
according  to  the  usual  methods  provided  by  law  for  that 
end,  would  deprive  the  government  of  a  means  of  obtain- 
ing payment,  often  useful,  and  sometimes  indispensably 
necessary.  That  such  power  exists,  as  an  incident  to  the 
general  right  of  sovereignty,  and  may  be  exercised  by 
the  proper  department,  if  not  prohibited  by  legislation, 
we  consider  settled  by  repeated  adjudications.  The 
United  States  being  a  body  politic,  as  an  incident  to  their 
general  right  of  sovereignty,  have  a  capacity  to  enter 
into  contracts  and  take  bonds,  by  way  of  security,  in 
cases  within  the  sphere  of  their  constitutional  powers,  and 
appropriate  to  the  just  exercise  of  those  powers,  through 
the  instrumentality  of  the  proper  department,  wdien  not 
prohibited  by  law,  although  not  required  to  do  so  by  any 
legislative  act ;  and  we  think  this  same  jDOwer  extends  to 
and  includes  taking  security  upon  j)roperty  for  a  debt 
already  due.* 

It  may  be  objected,  that  the  acquisition  of  soil,  as  se- 
curity, or  in  payment  of  a  debt,  is  not  the  same  as  the 

*  Neilson  v.  Lagow  and  al.  12  How.  Rep.  107,  108,  and  cases  there  cited. 


THE     SCIENCE     OF     GOVEKNMENT.  97 

acquisition  of  foreign  territory,  and  of  its  sovereignty. 
Concede  that  the  result  in  the  two  cases  is  not  the 
same,  but  is  more  extensive  in  the  one  than  in  the  other ; 
It  is  equally  true,  that  the  powers  b}^  which  the  results 
are  produced,  are  different,  and  are  exercised  for  different 
purposes ;  each  power  is  essential  to  the  government. 

The  same  principles  of  construction,  the  same  general 
course  of  reasoning,  in  relation  to  the  existence  and  ex- 
ercise of  these  powers,  may  be  applied  and  adopted, 
although  when  exercised  they  may  lead  to  different  results. 

A  debtor  may  be  liable  to  arrest  for  a  certain  sum,  or 
amount  of  indebtment,  and  not  liable  for  a  less  indebt- 
ment.  Whether  he  owes  the  one  or  the  other  amount, 
may  be  determined  by  the  same  or  a  similar  course  of 
proof,  by  the  same  or  a  similar  principle  of  reasoning, 
without  reference  to  the  result. 

In  1802,  a  convention  between  the  United  States  and 
Spain  was  entered  into,  for  the  purpose  of  adjusting  the 
several  claims  of  citizens  of  the  two  countries  upon  each 
other,  and  upon  their  several  governments.  By  a  treaty 
between  the  same  parties,  made  in  1819,  East  and  West 
Florida  were  ceded  to  the  United  States,  upon  terms  simi- 
lar to  those  by  which  Louisiana  had  been  ceded  by  France, 
and  the  claims  of  citizens  of  the  United  States  upon  Spain 
were  relinquished.  In  a  controversy  growing  out  of  this 
cession,  and  connected  with  rights  resulting  therefrom, 
the  acquisition  of  foreign  territory  was  a  matter  of  dis- 
cussion before  the  supreme  court  of  the  United  States, 
Avhich  tribunal,  in  the  course  of  its  judgment,  says,  "the 
constitution  confers  absolutely  on  the  government  of  the 
union  the  powers  of  making  war  and  of  making  treaties  -, 
consequently,  that  government  possesses  the  power  of 
acquiring  territory,  either  by  conquest  or  treaty."  * 

*  Elliot,  Diplomatic  Code,  vol.  i.  pp.  411-417,  421 ;  The  American  Ins.  Co.  v. 
Canter,  1  Peters,  542. 

1o 
O 


98  THE    SCIENCE    OF     GOVERNMENT. 

This  language  of  the  court  may  be  relied  upon  as  an 
authority,  as  an  adjudication  in  favor  of  the  power  of  the 
federal  government,  under  the  powers  named,  at  any 
time,  for  any  purpose,  rightfully  to  acquire  the  possession 
and  sovereignty  of  foreign  territory. 

It  is  evident,  however,  from  an  examination  of  the 
case,  that  the  mind  of  the  court  was  not  directed  to  such 
an  inquiry ;  it  was  not  the  intention  of  the  court  to  estab- 
lish or  admit  the  existence  of  a  power  so  extensive. 
An  assumption  in  the  federal  government  thus  broad,  can- 
.not  with  propriety  be  regarded  as  well  founded,  or  au- 
thorized by  its  system  or  its  trusts. 

In  this  and  the  preceding  lecture,  the  principal  matters 
which  concern  the  external  power  of  the  federal  govern- 
ment, as  exhibited  in  its  political  intercourse  with  other 
nations,  have  been  brought  to  your  notice. 

The  external  relations  of  any  and  of  every  country 
are  delicate,  are  difficult  of  management ;  they  assume 
frequently  an  attitude  dangerous  to  the  peace  of  one  or 
more  countries,  for  which  reason  they  are,  in  many  gov- 
ernments, intrusted  to  the  direction  of  a  single  individual, 
or  to  a  small  number  of  persons. 

In  fact,  the  term  government  imports  individuality, 
power,  and  authority ;  its  use  by  ourselves,  or  b}-  others, 
does  not  present  to  the  mind  a  qualified  impression  de- 
duced from  a  limitation  upon  its  power  and  authority ; 
this  is  the  result  of  examination  and  reflection. 

Although  this  individuality  and  unity  of  power,  applied 
to  others,  applied  externally,  may  be  unobjectionable,  it 
may  result  internally,  in  the  destruction  of  civil  right,  of 
private  interests,  and  in  gross  oppression.  Our  system  is 
designed  to  prevent  any  such  internal  derangement,  and 
at  the  same  time  to  establish  sufficient  individualit}'  and 
unity  of  power  in  the  mantigement  of  our  foreign  rela- 
tions, to  protect  us  from  wrong,  to  uphold  our  rights  as  a 
nation. 


THE    SCIENCE    OF     GOVERNMENT.  99 

The  examination  wliich  I  have  made  of  the  system,  its 
machinery  and  operations,  in  the  particulars  to  which  re- 
ference has  been  made,  is  sufficient  to  show  that  the  pur- 
pose has  been  accomphshed. 

The  poHtical  character  of  the  United  States  has  also 
been  shown.  The  character  thus  presented  is  worthy 
your  study  and  attention,  because  you  constitute  a  part 
of  the  power  by  which  it  has  been  established  ;  the  peo- 
ple constitute  the  power  by  which  alone  it  can  be  conti- 
nued and  upheld.  From  the  study  which  I  recommend, 
you  will  learn  that  our  policy  is  domestic,  is  peaceful,  is 
progressive.  Our  belief  is,  that  every  people  has  a  right 
to  establish,  to  regulate  its  own  internal  afiairs ;  that  no 
other  people  or  nation  have  or  has  a  right  to  intermeddle 
therein.  The  efforts  of  the  United  States  heretofore 
have  been,  to  maintain  good  faith  toward,  and  kindly  re- 
lations with,  all  other  nations. 

The  law  of  nations,  the  rights  and  duties  of  diplomatic 
agents,  have  been  regarded,  so  far  as  they  are  consonant 
to  reason,  which  is  the  Toundation  of  all  law. 

The  acquisition  of  territory  for  the  purpose  of  extend- 
ing the  territory  and  sovereignty  of  the  United  States, 
does  not  constitute  a  primary  or  even  secondary  object 
of  our  union,  and  can  be  justified  only  under  peculiar 
and  extraordinary  circumstances.  Our  mission  is  to  gov- 
ern ourselves ;  to  exhibit  a  light  upon  an  eminence  which 
others  may  see,  and,  if  they  will,  may  be  improved  by  its 
reflection. 


LECTURE    IV. 


THE  LEGISLATIVE  DEPARTMENT  OF  THE  FEDERAL  GOVERNMENT.  — IT  IS  SUPREME 
AND  EXCLUSIVE  OF  STATE  LEGISLATION.  —  THIS  POSITION  CONSIDERED  AS  AP- 
PLIED TO  TAXES,  COMMERCE,  NATURALIZATION,  BANKRUPTCIES,  COUNTERFEITING 
THE  PUBLIC  SECURITIES. 


In  a  classification  of  the  powers  of  government,  the 
legislative  or  law-making  power  has  precedence.  The 
power  of  construction,  of  ascertaining  the  meaning  of  a 
law,  the  power  of  execution,  of  carrying  a  law  into 
effect,  are  powers  equally  independent  and  essential ;  but 
these  do  not  create  or  impose  upon  the  citizen  the  obli- 
gations and  restrictions  under  which  he  performs  his 
duties  as  a  member  of  society. 

The  legislative  department  is  the  most  extensive  in  its 
operations,  because  it  creates,  and  imposes  upon  the  citi- 
zen the  restrictions  and  limitations  under  which  his 
powers  and  capacities,  physical,  mental,  and  moral,  are 
developed  for  his  individual  advantage  and  improvement, 
and  for  the  advantage  and  improvement  of  those  with 
whom  he  may  be  said  to  be  in  competition. 

The  science,  the  philosophy  of  our  system,  is  peculiarly 
manifest  in  the  construction  of  this  department.  It  is 
more  immediately,  more  directly  dependent  upon  the 
power  and  will  of  the  people,  than  is  either  of  the  other 
departments.  The  person^s,  the  trustees  who  exercise  the 
powers  and  trusts  of  this  department,  are  more  easily 


102  THE    SCIENCE     OF     GOVERNMENT, 

reached,  more  frequently  changed  by  the  people.     The 
law  makers  are  no  less  operated  upon  by  the  vicissitudes 
of  life,  the   changing  course  of  human  events,  than  are 
the  people ;  they  are  a  part  of  the  people.     They  cannot, 
therefore,  establish  for  themselves  any  distinct  and  exclu- 
sive immunities.     They  have  the  same  personal  interest 
in  an  honest  adherence  to  the  system,  to  the  charter  by 
which  their  powers  and  trusts  are  defined,  as  any  other 
portion  of  the  community  has,  or  can  have.     During  their 
continuance  in  office,  they  act  under  the  restraint  and 
limitations  imposed  by  written  constitutions.     It  cannot 
be  said,  in  language  often  but  erroneously  applied  to  the 
British  Parliament,  that  it  is  omnipotent ;  that  its  will, 
unlimited,  is  law.     No  such  or  similar  extent  of  power  is 
confided  to  the  legislative  department  of  the  national  or 
state  governments,  or  to  those  who  execute  their  trusts. 
The  legislative  department  of  the  federal  government 
is,  in  its  eifect  and  operation,  to  a  large  extent,  external ; 
it  is  also  internal.     Its  internal  power  is  subsidiary  to, 
and  is  designed  to  sustain  and  secure  the  external  and 
foreign  relations  of  the  union,  including,  as  part  thereof, 
the  intercourse  of  the  several  states  and  their  citizens 
with  each  other.     It  is  supreme  in  its  action,  whenever 
rightfully  and  constitutionally  applied  to  the  matters  con- 
fided to  the  federal  sovereignty.     This  supremacy  is  con- 
ceded by  all  who  have  discussed  its  powers.     It  is  also 
exclusive.     This  has  been   doubted  and  denied.     Upon 
this  supposed  exclusiveness  of  its  power,  a  confusion  has 
arisen,  from  a  misuse   and  misapplication  of  the   term 
"  concurrent^''  from  an  apparent  forgetfulness  of  the  fact, 
that  the    adoption   of  the   federal  constitution  did  not 
operate  a  merger,  or  an  extinguishment  of  the  private 
rights  of  the  citizen,  or  take  away  the  sovereignty  of  the 
states.     These  remain,  except  to  a  limited  extent,  except 
so  far  as  they  are  controlled,  for  the  use  of  the  federal 
government. 


THE     SCIENCE     OF     GOVERNMENT.  103 

The  exercise  by  the  several  states  of  powers  similar  to 
those  exercised  by  the  national  government  does  not 
render  them  concurrent,  and  has  no  tendency  to  show 
that  a  particular  power  of  the  federal  government  is  not 
exclusive.  This  exclusiveness  of  power,  in  many  particu- 
lars and  upon  some  subjects,  has  been  universally  con- 
ceded; in  other  particulars  it  has  been  resisted  and 
rejected.  A  power  cannot  be  supreme  in  a  particular 
person,  department,  or  government,  which  may  be  con- 
currently exercised  by  another  independent  person, 
department,  or  government.  A  concurrent  power  when 
once  put  in  motion  becomes  exclusive,  and  continues 
until  its  purpose  is  accomplished,  its  force  exhausted. 

The  term  concurrent  is  ordinarily  and  correctly  applied 
to  judicial  proceedings,  to  courts  and  other  departments, 
or  officers  acting  under  the  same  sovereignty,  and  not  to 
the  action  or  powers  of  distinct,  independent  sovereignties. 

In  some  estates,  or  titles  connected  with  property, 
there  are  shifting  or  springing  uses.  But  the  existence 
of  authority  in  an  independent  sovereignty  is  not  shifting, 
springing,  or  casual,  to  be  exercised  or  not  at  the  plea- 
sure of  a  different  government ;  but  it  is  permanent,  and 
coextensive  with  the  duration  of  the  government  in 
which  the  authority  is  found.  The  suggestion,  that  a 
statute  or  law  of  an  independent  sovereign  state  may  be 
repealed,  or  that  its  obligation  may  be  destroyed  or  sus- 
pended by  a  statute  or  law  of  a  different  jurisdiction, 
does  not  commend  itself  to  the  judgment.  The  power  of 
a  territorial  or  of  a  colonial  government,  may  be  dimin- 
ished or  enlarged  by  the  sovereignty  under  and  by  which 
the  one  or  the  other  is  protected.  The  several  states  and 
the  national  government  sustain  no  such  relation  to  each 
other.  They  are  clothed  with  similar  poAvers,  but  not 
with  the  same.  Whether  a  particular  subject  belongs  to 
the  one  or  to  the  other,  independent  of  express  provi- 


104  THE     SCIENCE     OF     GOVERNMENT. 

.sion,  may  be  determined  by  reference  to  the  duties  and 
purposes  for  which  they  have  severally  been  created. 
These,  I  doubt  not,  will  afford  the  means  of  solution 
which  any  contingency  may  require.  An  ambassador 
cannot  l)e  received  or  refused  by  a  state  government, 
because  his  agency  does  not  ajipertain  to  any  business 
intrusted  to  a  state. 

An  alien  cannot  be  admitted  to  the  benefits  and  privi- 
leges of  an  American  citizen  by  state  legislation.  No 
one  denies  or  doubts  the  principle  involved,  so  far  as  it 
may  be  applied  to  these  cases ;  but  it  is  doubted  and  de- 
nied when  applied  to  other  subjects,  more  directly  bear- 
ing upon  the  ordinary  pursuits  of  life.  In  considering 
the  extent  and  character  of  the  legislative  department,  it 
must  constantly  be  borne  in  mind,  that  it  should  be  co- 
extensive, and  in  harmony  with  the  system  of  govern- 
ment established  by  the  constitution.  If  this  has  not 
been  accomplished,  the  system  is  defective.  The  powers 
of  this  department  are  defined  in  the  constitution,  and 
they  cannot  be  exercised  by  any  state  or  state  depart- 
ment. Congress  has  no  power  to  transfer  its  jurisdiction, 
or  its  discretion,  and  no  state  has  authority  to  assume  the 
one  or  the  other.  An  analysis  of  the  legislative  depart- 
ment will  exhibit  the  purpose  and  capacity  of  the  fede- 
ral government,  so  far  as  they  depend  upon  powers  ex- 
jDressly  granted.  These  powers  are  stated  in  article  1, 
section  8,  of  the  constitution  of  the  United  States.  Some 
of  these  powers  relate  to  the  incidents  and  implements 
of  war,  to  the  foreign  relations  of  the  country,  and  have 
already  been  brought  to  your  consideration.  In  addition 
to  such  powers,  congress  has  authority  to  lay  and  collect 
taxes,  direct  and  indirect ;  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  states,  and  with 
the  Indian  tribes ;  to  establish  an  uniform  rule  of  naturali- 
zation, and  uniform  laws  on  the  subject  of  bankruptcies, 


THE     SCIENCE     OF     GOVERNMENT.  105 

throughout  the  United  States ;  to  coin  money  and  regu- 
late its  value ;  to  provide  for  the  punishment  of  counter- 
feiting the  securities  and  current  coin  of  the  United 
States  ;  to  establish  post-offices  and  post-roads ;  to  promote 
the  progress  of  science  and  useful  arts,  by  securing  for  a 
limited  time  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  discoveries ;  to  de- 
fine and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations ;  to 
make  all  laws,  which  shall  be  necessary  and  proper  for 
carrying  into  execution  these  powers,  and  all  other 
powers  vested  by  the  constitution  in  the  government  of 
the  United  States,  or  in  any  department  or  officer  there- 
of To  render  these  powers  available  and  secure  from 
state  interference,  to  accomplish  the  purpose  of  the  union, 
the  several  states  are  prohibited  from  exercising,  upon 
certain  subjects,  powers  similar  to  those  conferred  upon 
the  federal  government ;  in  some  other  particulars,  the 
states  are  absolutely  prohibited  from  action.  These  pro- 
hibitions will  be  considered,  when  reference  shall  be  made 
to  the  relation  which  the  states  bear  to  each  other,  and 
to  the  federal  government.  The  powers  which  congress 
is  authorized  to  exercise,  and  which  have  been  recited, 
exhibit  an  intention  to  protect  the  several  states  and  their 
citizens  from  foreign  control  or  interference,  to  protect 
the  states  from  each  other,  to  protect  the  citizens  in  cer- 
tain particulars  from  state  legislation,  to  secure  to  the 
citizens  of  other  countries  such  privileges  as  may  be  con- 
ceded to  them  by  treaty  stipulation,  by  law,  or  comity. 

Some  of  these  powers,  by  express  provision  of  the  con- 
stitution, must  be  so  exercised  as  to  produce  throughout 
the  United  States,  uniformity  of  action ;  others,  in  rela- 
tion to  which  no  such  provision  is  found,  from  their  char- 
acter and  purpose,  and  upon  principles  which  should  regu- 
late all  legislative  action,  must  be  so  exercised  as  to  pro- 

14 


106  THE    SCIENCE    OF    GOVERNMENT. 

ducc  uniformity.  The  value  of  money  coined  under  the 
authority  of  the  United  States,  should  be  the  same  in 
every  state.  Authors  and  inventors  should  be  protected, 
without  reference  to  the  state  of  which  they  may  be  citi- 
zens. In  these  cases,  and  in  some  others,  uniformity  is 
required,  not  by  express  provision,  but  by  a  natural  fit- 
ness or  necessity.  Whether  these  powers  are  exclusive 
in  the  federal  government  or  not,  has  been  regarded  as  a 
matter  or  question,  dependent  ui)on  the  construction  of 
each  j^articular  power  considered  l)y  itself  This  con- 
struction has  not  been  uniform  or  consistent,  but  has 
chanGTcd  from  time  to  time.  The  result  is,  that  some  of 
these  powers  are  now,  so  far  as  judicial  authority  is  con- 
sidered, to  be  regarded  as  exclusive  in  the  federal  govern- 
ment ;  others  are  to  be  regarded  quasi  concurrent  in  the 
states. 

It  is  admitted  that  the  power  of  congress,  within  the 
limit  or  jurisdiction  conferred  upon  it,  is  supreme ;  that 
no  state  power  can  control  or  impede  its  exercise.  Not- 
withstanding this  admission,  it  has  been  said,  and  it  has 
been  adjudicated,  that  some  of  these  powers  may  be  ex- 
ercised by  the  several  states  upon  matters  or  ^particulars, 
in  relation  to  which  congress  shall  not  have  exercised  its 
authority.  In  other  words,  that  the  legislative  power  of 
a  state,  in  some  particulars,  is  to  be  sought  for,  and  is  to 
be  ascertained,  by  inquiring  whether  congress  has  or  has 
not  exercised  its  power  over  the  same  subject-matter. 
This  is  an  extraordinary  result,  which  may  with  propri- 
ety be  regarded  unnecessary,  illogical,  and  well  calculated 
to  produce  confusion  and  collision.  The  powers  confer- 
red upon  the  legislative  department  of  the  federal  gov- 
ernment, are  essential  to  the  system,  and  to  the  trusts 
created  by  it;  otherwise  such  powers  should  not  and 
would  not  have  been  conferred.  In  my  view  of  the  sys- 
tem, the  powers  of  congress,  to  which  reference  has  been 


THE     SCIENCE    OF     GOVERNMENT.  107 

made,  are  supreme,  and  exclusive  of  state  legislation. 
The  several  states  may  exercise  similar  powers  for  its  own 
purposes,  in  all  instances  except  those  in  relation  to 
which  the  exercise  of  state  authority  is,  by  the  express 
terms  of  the  constitution  of  the  United  States,  prohibited, 
or  those,  an  exercise  of  which  would  be  incompatible 
with  the  union,  or  with  some  trust  or  power  confided 
to  it. 

Congress  has  power  to  lay  and  collect  taxes.  The 
several  states  have  power  to  lay  and  collect  taxes.  These 
powers  are  not  the  same  ;  they  are  similar  powers,  exer- 
cised by  different  governments,  for  different  purposes ;  and 
as  they  may  be  imposed  at  the  same  time  upon  the  same 
property  or  persons,  one  of  the  governments,  by  reason 
of  the  inabihty  of  the  person,  or  insufficiency  of  the  j)ro- 
perty  taxed,  may  occasionally  be  unable  to  levy  or  ob- 
tain the  amount  of  its  assessment. 

The  power  of  taxation,  which  the  two  governments 
severally  exercise,  cannot  be  designated,  in  any  appropri- 
ate use  of  the  term,  as  concurrent.  They  are  exclusive 
each  of  the  other,  to  the  extent  to  which  the  state  has 
the  power  of  taxation.  The  power  of  a  state  govern- 
ment to  assess  a  tax  upon  subjects  within  its  power  of 
taxation,  is  not  enlarged  or  diminished  by  the  exercise  of, 
or  by  the  neglect  to  exercise,  a  similar  power  of  taxation 
by  the  federal  government.  The  correctness  of  this  posi- 
tion in  relation  to  taxes  within  the  power  of  a  state,  has 
never  been  questioned ;  I  refer  to  it  as  an  illustration  of 
the  principle  which  should  be  applied  to  all  other  powers 
conferred  upon  the  federal  government.  Congress  has 
power  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  states,  and  with  the  Indian  tribes. 
The  late  Mr.  Justice  Story,  in  his  commentaries  upon  the 
constitution,  in  discussing  the  question,  whether  the 
power  to  regulate  commerce  is  exclusive  of  the  same 


108  THE    SCIENCE    OF     GOVERNMENT. 

power  in  the  states,  says,  "  It  has  been  settled,  upon  the 
most  solemn  deliberation,  that  the  power  is  exclusive  in 
the  government  of  the  United  States."  =•= 

The  power  to  regulate  commerce  is  general  and  un- 
limited in  its  terms.  The  full  power  to  regulate  a  parti- 
cular subject  impUes  the  whole  power,  and  leaves  no  re- 
siduum. A  grant  of  the  whole  is  incompatible  with  the 
existence  of  a  right  in  another  to  any  part  of  it.  A  grant 
of  power  to  regulate,  necessarily  excludes  the  action  of  all 
others  who  would  perform  the  same  operation  on  the 
same  thino;.  Refj-ulation  is  desio-ned  to  indicate  the  entire 
result.  It  produces  an  uniform  whole,  which  is  as  much 
disturbed  and  deranged  by  changing  what  the  regulating 
power  designs  to  have  unbounded,  as  that  on  which  it 
has  operated. 

The  power  to  regulate  commerce  may  be  divided,  may 
be  distributed  between,  and  may  be  exercised  by,  two 
sovereignties  for  dilBferent  purposes. 

The  power  of  congress  in  laying  taxes  is  not  inconsis- 
tent with  that  of  the  states.  Each  may  lay  a  tax  on  the 
same  thing,  on  the  same  property,  without  interfering 
with  the  action  of  the  other ;  for  taxation  is  but  taking 
small  portions  from  the  mass  of  property,  which  is  sus- 
ceptible of  almost  infinite  division.  In  imposing  taxes  for 
state  purposes,  a  state  is  not  doing  what  congress  is  em- 
powered to  do.  Congress  is  not  empowered  to  tax  for 
those  purposes  which  are  within  the  exclusive  province 
of  the  several  states.  Whenever  each  or  either  govern- 
ment exercises  the  power  of  taxation,  neither  is  exercis- 
ing the  power  of  the  other.  But  when  a  state  proceeds 
to  regulate  commerce  with  foreign  nations,  or  among  the 
several  states,  it  is  exercising  the  very  power  which  is 


Story  on  Con.  U.  S.,  Book  3,ch.  15,  sections  51G,  517,  Abridgment. 


THE    SCIENCE     OF     GOVERNMENT.  109 

granted  to  congress,  and  is  doing  the  very  thing  which 
congress  is  authorized  to  do.  When  these  suggestions 
were  made  by  the  author  cited,  they  were  true,  and  in 
accordance  with  the  adjudications  of  the  highest  judi- 
cial tribunal  known  to  the  laws  of  the  United  States.  A 
tribunal,  the  decisions  of  which  have  generally  been  dis- 
tinguished for  correctness  and  ability;  the  decisions  of 
which  must  be  resjDCcted,  and  must  be  regarded  as  con- 
clusive upon  all  matters  arising  under  the  constitution  or 
laws  of  the  United  States,  howsoever  they  may  differ  from 
the  judgment  of  any  individual,  or  from  the  belief  or 
opinion  of  the  community.  A  reference  to  the  decisions 
of  this  court,  made  since  the  commentary  upon  the  con- 
stitution was  written,  will  exhibit  a  different  result.  It 
must  now  be  conceded,  that  these  decisions  sustain  the 
right  of  the  several  states  to  regulate  some  matters  of 
commerce  not  internal,  provided  congress  shall  not  have 
exercised  its  authority  in  a  manner  to  conflict  with  state 
legislation ;  a  position,  a  theory,  which  I  cannot  doubt 
will  ultimately  be  renounced.  These  recent  adjudica- 
tions seem  to  have  been  produced  by  a  desire  to  uphold 
the  power  and  authority  of  the  state  governments,  so 
far  as  such  power  could,  by  any  plausible  course  of  rea- 
soning be  upheld,  by  an  opinion  well  founded,  perhaps, 
that  some  of  the  matters  over  which  congress  has  power, 
may  be  regulated  more  conveniently  by  state  legislation 
than  by  the  legislation  of  the  federal  government. 

These  must  be  considered  as  unsafe  and  dangerous  ele- 
ments of  reasoning.  These  adjudications  have  also,  to 
some  extent,  been  induced  by  giving  too  much  force  and 
effect  to  expressions  used  in  a  manner  which  may  be  re- 
garded inaccurate  and  inappropriate.  It  has  been  often 
said,  that  the  mere  grant  of  power  to  congress  does  not 
imply  a  prohibition  on  the  states  to  exercise  the  same 


110  THE     SCIENCE     OF     GOVERNMENT. 

power."-'  Here  is  a  clear  misuse  of  terms.  It  might  have 
been  said,  that  the  mere  grant  of  a  power  to  congress  does 
not  imf)ly  a  prohibition  on  the  state  to  exercise  a  siniikxr 
power.  A  power  in  the  federal  government  to  impose  a 
tax  for  the  purposes  of  the  federal  government,  does  not 
and  cannot  imply  a  prohibition  on  a  state,  so  as  to  pre- 
vent the  imposition  of  a  state  tax  for  state  purposes. 
The  authority  of  congress  to  lay  and  collect  taxes  for  cer- 
tain purposes,  does  not  interfere  with  the  power  of  the 
several  states  to  tax  for  the  support  of  their  own  govern- 
ments ;  nor  is  the  exercise  of  such  j)ower  by  the  states  an 
exercise  of  any  portion  of  the  power  which  is  granted  to 
the  United  States. j- 

In  a  case  recently  before  the  supreme  court  of  the 
United  States,  in  which  the  question  under  consideration 
was  discussed,  an  able  and  accomplished  member  of  the 
court  (Mr.  Justice  Taney)  regarded  the  power  to  regu- 
late commerce  between  the  several  states  as  having  the 
same  force  and  effect  as  when  applied  to  the  regulation 
of  commerce  with  foreign  nations.  In  this  respect,  no 
diftcrence  of  opinion  has  ever  arisen ;  the  powers  are 
conferred  in  the  same  clause  and  by  the  same  ■words ; 
they  .are  of  the  same  character,  inasmuch  as  commerce 
between  the  several  states  cannot  be  regarded  as  local 
or  subject  to  state  legislation,  with  any  more  appropriate- 
ness than  can  be  the  commerce  with  foreign  nations. 
After  conceding  this,  the  learned  judge  proceeds  to  say, 
"  the  present  is  a  case  of  commerce  between  two  states, 
in  relation  to  Avhich  congress  has  not  exercised  its  power." 
The  question,  therefore,  is,  whether  a  state  is  prohibited 
by  the  constitution  of  the  United  States  from  making 


*  Sturges  V.  Crowninshield,  4  "WTieat.  Rep.  122. 
t  Gibbons  v.  Ogden,  9  Wheat.  Rep.  1. 


THE    SCIENCE     OF     GOVERNMENT.  Ill 

any  regulations  of  foreign  commerce,  or  of  commerce 
with  another  state,  although  such  regulation  is  confined 
to  its  own  territory,  and  made  for  its  own  convenience  or 
interest,  and  does  not  come  in  conflict  with  any  law  of 
congress.  In  other  words,  whether  the  grant  of  power. is 
of  itself  a  prohibition  to  the  states,  and  renders  all  state 
laws  upon  the  subject  null  and  void.  Although  a  differ- 
ence of  oj)inion  exists  between  the  members  of  the  court, 
it  seems  to  me  to  be  very  clear,  that  the  mere  grant  of 
power  to  the  general  government  cannot,  upon  any  just 
principles  of  construction,  be  construed  to  be  an  absolute 
prohibition  to  the  exercise  of  any  power  over  the  same 
subject  by  the  states. 

The  controlling  and  supreme  j)ower  over  commerce 
with  foreign  nations  and  the  several  states  is,  undoubtedly, 
conferred  upon  congress.  Yet  the  state  may  neverthe- 
less, for  the  safety  or  convenience  of  trade,  or  for  the 
protection  of  the  health  of  its  citizens,  make  regulations 
of  commerce  for  its  own  j)orts  and  harbors,  and  for  its 
own  territory  ;  and  such  regulations  are  valid,  unless  they 
come  in  conflict  with  a  law  of  congress.*  This  supposed 
theory  of  our  system  is  sustained  and  enforced  by  con- 
siderations derived  from  convenience,  and  from  supposed 
usage  in  analogous  cases.  It  is  also  supported  by  refer- 
ence to  the  power  conferred  upon  congress  over  the 
militia.  In  an  earlier  case  the  court  had  holden,  that  the 
grant  of  power  to  the  federal  government  to  provide  for 
organizing,  arming,  and  disciplining  the  militia ;  did  not 
preclude  the  several  states  from  legislating  on  the  same 
subject,  provided  the  law  of  the  state  was  not  repugnant 
to  the  law  of  congress.f 

These  cases  are  not  analogous,  and  the  power  of  con- 


*  The  License  Cases,  5  How.  Rep.  578,  579. 
I   Houston  V.  Moore,  5  Wheat.  Rep.  1 . 


112  THE    SCIENCE     OF     GOVERNMENT. 

gress  over  the  militia  and  over  commerce,  cannot  well  be 
ascertained  hy  any  supposed  relation  between  them.  The 
militia  is  peculiarly  a  state  institution,  to  be  regulated  in 
its  general  features  by  the  several  states.  It  cannot  be 
considered  as  one  of  the  implements  by  which  the  duties 
of  the  federal  government  are  to  be  executed.  The 
power  of  congress  over  the  militia  is  in  terms  special  and 
qualified. 

Congress  has  power  to  call  forth  the  militia  to  execute 
the  laws  of  the  union,  to  suppress  insurrections,  and 
repel  invasions ;  to  provide  for  their  organization  and 
government,  when  employed  in  the  service  of  the  United 
States,  reserving  to  the  states  the  appointment  of  its 
officers.  The  militia  are  to  be  relied  upon  only  upon 
sudden  emergencies ;  the  safety  of  the  union  is  to  be 
secured  by  the  army  and  navy,  by  forces  created  and 
controlled  exclusively  by  congress,  so  far  as  such  security 
depends  upon  force.  Subsequent  to  the  case  to  which 
reference  has  been  made,  the  same  subject  was  considered 
in  a  class  of  cases,  called  the  passenger  cases,  in  which 
the  members  of  the  court  did  not  agree  or  iniite  in 
opinion  or  in  judgment.  So  far  as  an  examination  of 
these  cases  afford  the  means  of  attaining  a  result,  it  would 
seem  that  a  majority  of  the  court  considered  the  power 
of  congress  over  commerce  exclusive  of  any  state  legis- 
lation upon  the  same  subject,--'  thus  returning  apparently 
to  the  doctrine  which  Mr.  Justice  Story  had  regarded  as 
well  settled. 

The  matter  has  recently  been  before  the  court,  and  a 
majority  have  distinctly  said,  that  the  power  of  congress 
over  commerce  is  not,  in  all  particulars  and  in  relation 
to  all  the  regulations  of  commerce,  to  be  regarded  as 
exclusive  of  state  power. 

*  The  Passenger  Cases,  7  How.  Rep.  283. 


THE     SCIENCE     OF     GOVERNMENT.  113 

In  1789,  congress  by  statute  provided,  "that  all  pilots 
in  the  bays,  inlets,  rivers,  harbors,  and  ports  of  the  United 
States  shall  continue  to  be  regulated  in  conformity  with 
the  existing  laws  of  the  states  respectively,  wdierein  such 
pilots  may  be,  or  witli  such  laws  as  the  states  may  re- 
spectively hereafter  enact  for  the  purpose,  until  further 
legislative  provision  shall  be  made  by  congress."  '•'  Subse- 
quent to  this  act  of  congress,  Pennsylvania  by  its  statute 
of  29th  March,  1803,  enacted  that  every  ship  or  vessel 
arriving  from  or  bound  to  any  foreign  port  or  place,  and 
every  ship  or  vessel  of  the  burden  of  seventy-five  tons  or 
more,  sailing  from  or  bound  to  any  port  not  within  the 
river  Delaware,  shall  be  obliged  to  receive  a  pilot.  And 
if  the  master  of  any  such  ship  or  vessel  shall  refuse  or 
neglect  to  take  a  pilot,  the  master,  owner,  or  consignee 
shall  pa}^  a  sum  equal  to  half  pilotage.  The  validity  of 
this  statute  of  Pennsylvania  was  the  matter  to  be  adjudi- 
cated. The  court  entertained  an  opinion  that  the  regu- 
lation of  pilots,  was  to  be  regarded  as  a  regulation  of 
navigation,  and  therefore  a  regulation  of  commerce 
over  which  congress  had  the  supreme  authority ;  that 
the  act  of  congress  adopting  the  state  laws  existing 
at  the  time  of  its  passage,  made  such  laws  by  adop- 
tion laws  of  the  United  States,  but  did  not  operate 
to  give  effect  to  the  laws  of  the-  states  subsequently 
passed.  The  court,  therefore,  were  brought  directly  and 
unavoidably  to  the  consideration  of  the  question,  whether 
the  mere  grant  of  the  commercial  power  to  congress, 
was  in  itself  a  prohibition  to  the  states  of  all  power  to 
regulate  commerce,  embracing  within  the  term  all  mat- 
ters to  which  the  power  of  congress  over  commerce 
extended.  The  court  held  that  a  state  by  virtue  of  its 
own  sovereign  power  might   legally  regulate  pilots,  so 

*  Stat,  at  Large,  U.  S.,  vol.  i.  pp.  53,  54,  ch.  ix.  sec.  4. 

15 


114  THE     SCIENCE     OF    GOVERNMENT. 

long  as  congress  neglected  to  exercise  its  power  over  the 
subject.  This  opinion  proceeded  mainly  upon  an  assump- 
tion, that  pilots  and  pilotage  could  be  regulated  by  the 
several  states  more  conveniently  than  by  congress.  The 
court  at  the  same  time  expressly  limiting  the  principles 
of  its  judgment  to  the  case  of  pilots,  intimating  that  the 
principle  of  that  case  would  not  be  applied  to  other  cases, 
to  which  its  reasoning  might  be  applicable.'^'  A  minority 
of  the  court  dissented,  and  one  member  gave  the  reasons 
of  his  dissent,  which  when  read  must  be  commended  by 
him  who  reads.  He  says,  "  That  a  state  may  regulate 
foreign  commerce,  or  commerce  among  the  states,  is  a 
doctrine  which  has  been  advanced  by  individual  judges 
of  this  court,  but  never  before  sanctioned  by  the  decision 
of  this  court.  In  this  case  the  power  to  regulate  pilots, 
is  admitted  to  belong  to  the  commercial  power  of  con- 
gress ;  and  yet  it  is  held,  that  a  state,  by  virtue  of  its 
inherent  power,  may  regulate  the  subject  until  such 
regulation  shall  be  annulled  by  congress.  This  is  the 
principle  established  by  this  decision.  Its  language  is 
guarded,  in  order  to  apply  the  decision  only  to  the  case 
before  the  court.  But  such  restrictions  can  never  ope- 
rate so  as  to  render  the  principle  inapplicable  to  other, 
cases. ,  The  power  is  recognized  in  the  state,  because  the 
object  is  more  appropriate  for  state  than  federal  action ; 
and  consequently  it  must  be  presumed,  the  constitution 
cannot  have  intended  to  inhibit  state  action.  This  is  not 
a  rule  by  which  the  constitution  is  to  l)e  construed."*)* 

It  will  be  found  that  the  principle  in  this  case,  if  car- 
ried out,  will  deeply  affect  the  commercial  prosperity  of 
the  country. 

If  a  state  has  power  to  regulate  foreign  commerce, 
such  regulation  must  be  held  valid,  until  congress  shall 


*  Cooley  r.  The  Wardens  of  Philadelphia,  12  How.  299. 
t  Ibid.  p.  324.     Mr.  Justice  McLean,  dissenting  opinion. 


THE     SCIENCE     OF     GOVERNMENT.  115 

repeal  or  annul  it.  These  views  of  the  dissenting  judge 
are  in  harmony  with  the  system,  which  consists  in  the 
creation  and  symmetry  of  two  distinct  governments,  each 
having  its  peculiar  jurisdiction  defined,  and  not  dependent 
upon  convenience,  or  the  supposed  indifference  to  and 
neglect  by  the  one  of  its  duty.  If  the  sovereign  legis- 
lative capacity  of  a  state  may  depend  in  any  one  case 
upon  convenience,  it  may  be  ascertained  with  equal  pro- 
priety in  all  other  cases,  upon  the  same  or  a  similar  con- 
venience. If  the  legislative  power  of  a  state  is  depen- 
dent upon  the  action  or  non-action  of  another  govern- 
ment, it  has  no  solid  or  secure  foundation  upon  which  to 
stand,  and  its  constitution  the  source,  and  the  only  legiti- 
mate source  of  its  power,  may  well  be  torn  into  pieces, 
and  its  fragments  scattered  to  the  wind.  Upon  this  ques- 
tion may  be  examined  and  considered  an  able  and  inter- 
esting opinion  of  the  late  William  Wirt,  given  when  he 
was  attorney-general  of  the  United  States.  South  Caro- 
lina passed  a  statute,  by  which  it  was  enacted  "  that  if  any 
vessel  shall  come  into  any  port  or  harbor  of  this  state 
from  any  other  state  or  foreign  port,  having  on  board  free 
persons  of  color,  such  persons  shall  be  liable  to  be  seized 
and  confined  until  the  vessel  sails,  and  the  expenses  of 
detention  shall  be  paid  by  the  master,  and  upon  his  re- 
fusal to  pay,  the  persons  so  seized  may  be  sold  as  absolute 
slaves."  '•'  Under  this  law  a  person  of  color  was  seized 
from  a  British  vessel,  and  upon  application  to  the  federal 
government  the  attorney-general  advised,  that  the  stat- 
ute was  unconstitutional  and  void.  In  this  oj)inion  the 
powers  of  the  federal  government  and  of  the  several 
states  are  stated  with  clearness  and  accuracy.  It  says, 
"  By  the  national  constitution,  the  power  of  regulating 


*  Elliot,  Diplomatic  Code,  vol.  il.  pp.  676,  677  ;  Opinions  of  the  Attorneys- 
General,  vol.  I.  p.  659  ;  Ibid.  vol.  II.  p.  426. 


IIG  THE     SCIENCE     OF     GOVEIINMENT. 

commerce  ■with  foreign  nations  and  among  the  several 
states,  is  given  to  congress ;  and  this  power  is  from  its 
nature  exclusive.  This  power  of  reguhiting  conuiierce  is 
the  power  of  prescribing  the  terms,  on  which  the  inter- 
course between  foreign  nations  and  the  United  States, 
and  between  the  several  states  of  the  union,  shall  ha  car- 
ried on.  No  state  can  interdict  a  vessel  which  is  about 
to  enter  her  ports,  in  conformity  with  the  laws  of  the 
United  States,  nor  impose  any  restraint  or  embarrassment 
on  such  vessel,  in  consequence  of  her  having  entered  in 
conformity  with  these  laws."  This  opinion  was  not  given 
in  consequence  of  any  supposed  illegality  or  inhumanity 
exhibited  in  the  purj^ose  of  the  state  statute,  but  because 
the  state  had  no  authority  to  say  whether  a  vessel  should 
be  navigated  in  part  or  in  whole  by  a  particular  class  of 
persons.  A  subsequent  attorney-general  of  eminent 
ability  gave  a  different  opinion,  upon  the  ground,  that 
the  statute  might  be  regarded  and  sustained  as  a  mere 
police  regulation.  Upon  principle,  a  state  has  the  same 
power  and  authority  to  say,  a  vessel  shall  not  be  navi- 
gated by  free  persons  of  color,  as  it  has  to  say,  a  vessel 
shall  be  navigated  by  a  pilot  appointed  by  the  state.  It 
can  impose  penalties  in  the  one  case,  so  well  as  it  can  in 
the  other.  In  my  judgment,  a  state  cannot  constitution- 
ally do  either.  I  have  dwelt  upon  this  subject  somewhat 
at  length,  because  I  consider  the  question  as  of  vital  im- 
portance to  the  safety  and  harmonious  action  of  our  sys- 
tem. The  internal  commerge  of  a  state,  that  which  is 
carried  on  exclusively  within  its  own  territory  and  be- 
tween its  own  citizens,  or  between  persons  temporarily 
domiciled  or  resident  within  its  exclusive  jurisdiction, 
may  and  must  be  regulated  Ijy  state  authority.  Foreign 
commerce  and  commerce  between  the  several  states,  in 
its  nature  is  peculiarly  the  subject  of  the  care  and  su^^er- 
vision  of  the  federal  government,  and  should  be  left  with 


THE     SCIENCE     OF     GOVERNMENT,  117 

all  its  parts,  where  it  has  been  placed  by  the  constitution. 
By  this  division  of  power  between  the  two  governments, 
each  is  supreme  and  exclusive  of  the  other,  in  and  within 
its  prescribed  limits,  and  no  confusion  or  war  of  the  poli- 
tical elements  can  exist. 

Another  power  conferred  upon  congress  is,  to  establish 
an  uniform  rule  upon  the  subject  of  naturalization.  This 
is  an  important  power,  and  it  must  be  considered  as  a 
power  which  could  not  well  be  vested  in  and  with  the 
several  states.  Aliens  have  no  right  to  become  citizens 
of  a  country  to  which  they  owe  no  allegiance,  except  as 
a  matter  of  comity.  Some  writers  hold,  that  a  citizen 
cannot  at  his  pleasure  renounce  his  native  allegiance.  If 
this  be  so,  the  power  of  a  government  to  extend  such 
comity  should  be  well  guarded,  and  capable  of  efficient 
control. 

An  individual  who  enters  a  country  other  than  his 
own,  does  so  as  matter  of  comity,  expressed  in  legal  en- 
actments, or  by  the  sovereign  will,  or  by  implication  de- 
rived from  the  fact,  that  no  restraining  provision  or  policy 
has  been  adopted. 

An  alien,  in  our  law,  is  a  person  born  out  of  the  juris- 
diction of  the  United  States.*  A  person  born  without 
the  territory  of  the  United  States,  may  have  been  born 
within  its  jurisdiction,  and  consequently  be  regarded  as  a 
citizen.  An  alien  cannot  acquire  a  title  to  real  property 
by  descent,  or  which  is  created  by  other  mere  operation 
of  law.  This  is  a  well  settled  rule  of  the  common  law, 
and  prevails,  unless  some  statute  or  other  competent  au- 
thority shall  have  made  a  different  provision.  An  alien 
may  purchase  land,  or  may  take  it  by  devise,  subject  to 
the  right  of  the  state  to  seize  it,  and  divest  his  title,  which, 
however  acquired,  must  be  regarded  at  common  law  as 

*  2  Kent,  Com.  5th  edit.,  p.  50,  et  seq. 


118  TlIK     SCIENCE     OF     GOVERNMENT. 

imperfect  and  defeasible.  If  an  alien  purchase  land,  at 
his  decease  it  does  not  descend  to  his  heirs,  but  vests  im- 
mediately in  the  state.  An  alien,  under  the  English  law, 
may  take  a  lease  for  years  of  a  house  for  the  purpose  of 
trade.  Probably  in  this  country,  a  lease  of  a  house  to  an 
alien  for  any  purpose,  would  be  regarded  as  valid  between 
the  parties  to  it,  inasmuch  as  our  system  is  not  so  severe 
as  the  common  law  of  England  has  been  upon  this  sub- 
ject. 

We  are  very  much  inclined,  when  inquiring  what  the 
law  is,  to  ascertain  what  it  should  be,  to  learn  whether 
this  or  that  proposition  has  a  logical  foundation ;  whether 
it  be  conformable  to  certain  supposed  principles  of  right 
and  wrong,  —  a  mode  of  deduction  of  much  value,  but 
not  always  safe.  An  alien  cannot  exercise  the  right  of 
suffrage,  a  privilege  which  constitutes  the  main  pillar  of 
our  institutions,  which  is  enjoyed  by  the  American 
citizen  to  a  greater  extent  than  it  is  by  the  citizen  of 
any  other  country.  An  alien,  if  permitted  by  comity 
to  enter  a  country,  is  entitled  to  its  protection  in  his  per- 
son, his  character,  and  in  such  property  as  the  law  of  the 
country  may  permit  him  to  hold. 

The  disabilities  imposed  upon  aliens  are  designed  to 
secure  the  integrity  and  welfare  of  the  country  by  which 
they  are  imposed,  to  prevent  the  introduction  of  danger- 
ous persons ;  of  persons  who,  having  acquired  political 
or  religious  associations  supposed  to  be  objectionable, 
might  not  readily  abandon  them  for  those  of  their 
adopted  country. 

The  title  to  land,  when  it  became  the  subject  of  indi- 
vidual ownership,  was  regarded  as  conferring  peculiar 
rights,  and  as  giving  to  its  possessor  a  control  over  the 
government,  a  political  importance  and  influence  not  de- 
rived or  acquired  by  the  possession  or  ownership  of  mov- 
able property. 


THE    SCIENCE     OF     GOVERNMENT.  119 

The  disabilities  of  aliens  were,  therefore,  established 
from  considerations  of  state  policy  or  necessity,  as  a 
means  of  self-preservation  and  protection,  which  every 
government  has  a  right  to  claim  for  itself  and  for  its 
citizens.  As  the  great  body  of  any  community  are  more 
or  less  intelligent  and  educated,  so  these  restrictions  are 
more  or  less  important  and  essential  to  the  well-being  of 
such  community.  It  must  be  perceived,  from  this  slight 
reference  to  the  principles  which  all  countries  have  ap- 
plied to  aliens,  that  the  subject  is  one  peculiarly  appro- 
priate to  the  federal  government,  so  as  to  give  uniformity 
and  stability  to  such  system  as  may  be  adopted.  Nations 
have  frequently  entered  into  stipulations  with  each  other, 
by  which  the  respective  citizens  of  each  have  been 
allowed  to  enjoy  certain  immunities  in  the  country  of 
the  other,  which  they  might  not  have  had  without  such 
agreement.  This  exhibits  the  progress  of  society,  and 
the  constant  enlargement,  between  civilized  nations,  of 
private  right. 

In  a  treaty  made  by  the  United  States  with  Great 
Britain  in  1783,  it  was  agreed,  "  that  creditors  on  either 
side  shall  meet  with  no  lawful  impediment  to  the  re- 
covery of  the  full  value  in  sterling  money  of  all  hond  fide 
debts  heretofore  contracted."  It  was  provided,  in  the  same 
treaty,  that  congress  should  recommend  to  the  several 
states  restitution  of  confiscated  estates ;  that  all  persons 
should  be  allowed  to  go  to  any  part  or  parts  of  any  of  the 
thirteen  states,  and  therein  to  remain  for  twelve  months 
unmolested  in  their  endeavors  to  obtain  restitution  of 
their  estates  which  had  been  confiscated.'-^  By  a  treaty 
with  the  same  country,  in  1794,  the  United  States  agreed 
to  make  compensation  to  British  creditors  for  losses  occa- 

*  Statutes  at  Large,  U.  States,  vol.  viii.  p.  82. 


120  THE     SCIENCE     OF     GOVERNMENT. 

sioncd  by  legal  impediments  to  the  collection  of  debts 
contracted  before  tlie  peace  of  1783.'=' 

It  was  also  provided  that  British  subjects  who  had 
lands  in  the  territories  of  the  United  States,  and  Ameri- 
can citizens  who  held  lands  in  the  dominions  of  his  ma- 
jesty, should  continue  to  hold  them  according  to  the 
nature  and  tenure  of  their  respective  estates  and  titles 
therein,  and  might  grant,  sell,  or  devise  the  same  to 
whom  they  pleased,  in  like  manner  as  if  they  were  na- 
tives ;  and  that  neither  they,  nor  their  heirs  or  assigns, 
should,  so  far  as  may  resjiect  the  said  lands  and  the  legal 
remedies  thereto,  be  regarded  as  aliens.f 

In  a  treaty  with  Spain  in  1795,  it  was  provided  that 
the  courts  of  each  country  should  be  open  to  the  citizens 
of  the  other.  J  The  policy  of  the  United  States,  exhibited 
in  its  legislation  in  relation  to  aliens,  has  been  liberal  and 
enlarged.  We  are  admonished  to  love  our  neighbor  as 
as  ourself;  in  the  language  of  the  law  we  are  admo- 
nished to  use  our  own  privileges,  so  as  not  to  destroy  or 
impair  the  rights  or  reasonable  expectations  of  others. 
In  our  negotiations  with  aliens,  this  admonition  has  been 
heeded  to  its  full  extent. 

They  are  allowed,  under  the  constitution  and  laws  of 
the  United  States,  to  litigate  with  citizens  in  the  courts  of 
the  United  States.  Aliens  litigating  with  aliens  have  no 
standing  in  the  courts  of  the  United  States,  but  must  re- 
sort in  such  case  to  a  state  court.  This  exclusion  of 
aliens,  when  litigating  with  each  other  from  the  courts  of 
the  United  States,  does  not  probably  apply  to  some  cases 
which  may  arise  in  a  court  of  admiralty  and  maritime 
jurisdiction. 


*  Statutes  at  Large,  U.  States,  vol.  viii.  p.  110. 
t  Ibid.  p.  112.  t  Ibid.  p.  1 50. 


THE     SCIENCE     OF     GOVERNMENT.  121 

This  discrimination,  which  is  made  between  litigation 
carried  on  between  ahens  and  that  which  is  carried  on 
by  an  aUen  against  a  citizen,  exhibits  the  object  of  our 
union,  of  the  federal  system,  which  is,  as  I  have  attempted 
thus  far  to  show,  protection  from  foreign  aggression  to 
ourselves,  accompanied  by  a  determination  to  give  no 
just  cause  of  offence  to  foreign  nations,  or  to  their  citi- 
zens. Aliens  are  admitted  to  all  the  privileges  of  citizens, 
after  a  short  residence,  upon  taking  an  oath  of  fealty. 
Difference  of  opinion  as  to  the  length  of  residence  which 
should  be  required  to  entitle  an  alien  to  become  a  citizen, 
has  always  existed  between  persons  who  have  considered 
it  as  a  mere  matter  of  state  policy,  uninfluenced  by  party 
considerations.  Politicians  have,  no  doubt,  differed  upon 
party  considerations,  and  with  reference  to  supposed 
temporary  personal  popularity ;  with  these  last  grounds 
of  difference  I  have  no  concern.  The  principle  which 
requires  a  residence,  is  deduced  from  the  supposed  ina- 
bility of  a  stranger  to  understand,  at  a  single  glance  of 
the  eye,  the  peculiarity  and  nature  of  our  institutions. 
A  man  may  change,  and  put  himself  above  and  beyond 
all  the  influences  and  associations  of  his  early  life ;  may 
throw  off  the  habit  of  thought  and  action  created  by  ex- 
ternal influences.  This  change,  however,  is  not  the  work 
of  an  hour  or  of  a  day;  it  must  be  the  result  of  time. 
This  time  cannot  be  ascertained  with  precision ;  it  is  not 
susceptible  of  mathematical  demonstration,  but  can  only 
be  approximated.  A  person  coming  from  a  country  gov- 
erned by  a  liberal  constitutional  government  or  system, 
can  be  assimilated  to  and  with  free  institutions  much 
easier  and  in  less  time  than  can  be  a  person  coming  from 
an  absolute  government,  as  the  former  w^ould  not  be  sub- 
ject to  the  same  extent  of  change. 

A  discrimination,  however,  based  upon  the  character 
or  supposed  character  of  the  native  country  of  an  alien, 

16 


122  THE     SCIENCE     OF     GOVERNMENT. 

would  be  olTcnsive  and  objectionable.  An  examination 
of  the  i^arties  applying,  with  a  view  to  ascertain  in  each 
individual  case  his  fitness,  as  exhibited  in  his  education 
or  natural  powers  of  mind,  would  be  objectionable  and 
impracticable.  The  period,  therefore,  which  may  be 
established  as  quarantine  or  probation  must  be  arbitrarj'-, 
and  should  be  sufficient  to  enaljle  the  applicant  for  the 
privileges  of  a  citizen  to  throw  off  his  old  garment  and 
to  put  on  the  new.  Another  fact  must  always  have 
influence  in  this  matter.  If  the  applications  are  few,  the 
time  of  residence  or  probation  which  may  be  required,  is 
comparatively  unimportant,  inasmuch  as  a  single  individ- 
ual, in  position  like  to  a  particle  of  the  ocean,  can  do 
little  to  derange  the  surrounding  mass.  On  the  other 
hand,  multitudes  must  be  seen,  and  their  influence  felt  for 
good  or  for  evil.  It  is  clear,  therefore,  that  the  time  of 
residence  should  to  some  extent  be  measured  by  the 
number  of  those  who  may  desire  to  renounce  the  pro- 
tection of  their  father-land,  by  the  adoj^tion  of  a  new 
home  and  its  immunities.  I  proceed  to  inquire  whether 
the  power  to  admit  aliens  to  the  privileges  which  belong 
only  to  a  citizen,  is  exclusive  in  the  federal  government. 
The  provision  of  the  constitution  is,  that  the  rule  upon 
the  subject  shall  be  uniform  throughout  the  United 
States.  The  several  states  have  no  means  of  exercising 
a  joint  power,  have  no  authority  which  can  operate 
beyond  their  respective  territories,  and  consequently  can- 
not establish  the  uniformity  of  action  which  the  subject 
requires.  The  power  is  appropriate  and  essential  to  the 
federal  government,  by  which  all  the  foreign  intercourse 
and  relations  of  the  country  are  controlled.  The  United 
States  have  contracted  with  the  several  states  to  protect 
them  in  the  enjoyment  of  a  repubhcan  form  of  govern- 
ment, to  protect  them  against  invasion. 

Mr.  Justice  Story,  in  his  commentaries  upon  the  con- 


THE    SCIENCE     OF     GOVERNMENT.  123 

stitution,  says,  it  follows  from  the  very  nature  of  the 
power,  that  to  be  useful,  it  must  be  exclusive ;  for  a  con- 
current power  in  the  states  would  bring  back  all  the  evils 
and  embarrassments  (existing  under  the  confederation) 
which  the  uniform  rule  of  the  constitution  was  designed 
to  remedy.  And  accordingly,  though  there  was  a  mo- 
mentary hesitation,  when  the  constitution  first  went  into 
operation,  whether  the  power  might  not  still  be  exercised 
by  the  states  subject  only  to  the  control  of  congress,  so 
far  as  the  legislation  of  the  latter  extended,  as  the 
supreme  law ;  yet  the  power  is  now  firmly  established  to 
be  exclusive  in  congress.'^'  If  this  power  be  regarded  as 
exclusive  in  congress,  and  it  always,  so  far  as  I  know,  has 
been  so  regarded,  no  state  can  rightfully  exercise  any 
part  of  the  power.  If  a  state  cannot  remove  all  the  dis- 
abilities of  an  alien,  I  see  no  ground  upon  which  it  can 
with  propriety  be  said,  that  a  state  can  remove  any  of 
the  disabilities.  It  is  the  province  of  the  federal  govern- 
ment to  provide  for  the  naturalization  of  aliens,  and  as  a 
consequence,  to  say  upon  whom  and  upon  what  condi- 
tions aliens  shall  be  allowed  to  become  citizens.  This 
privilege  may  be  conferred  upon  a  few  individuals,  or  it 
may  be  denied  altogether.  This  power  of  reception  and 
rejection  cannot  be  concurrently  exercised  by  two  inde- 
pendent governments,  exercising  jurisdiction  over  the 
same  territory.  I  have  endeavored  to  state  the  character 
and  condition  of  this  power  distinctly  and  intelligently, 
for  the  purpose  of  bringing  to  your  notice  a  matter 
which  has  not  been  discussed  with  reference  to  the  pecu- 
liarities of  our  system  of  government.  An  alien,  at  com- 
mon law,  cannot  acquire  a  perfect  and  indefeasible  title 
to  land.  An  incapacity  to  hold  a  fee-simple  is  one  of 
the  disabilities  of  alienage.     It  is  true,  that  at  common 


*  Story  ou  Con.  U.  States,  book  3,  ch.  IG,  sec.  538. 


124  THE    SCIENCE     OF     GOVERNMENT. 

law  an  alien  ma}^  hold  land  until  the  sovereign  power 
within  whose  jurisdiction  it  is  situate  shall,  by  virtue  of 
its  sovereignty,  seize  upon  it,  and  thereby  divest  the  sup- 
posed title.  In  the  language  of  the  law,  an  alien  may 
hold  until  office  found  ;  that  is,  until  the  sovereign  power, 
by  the  institution  of  a  suit,  shall  ascertain  and  declare 
the  alienage.  This  has  unilbnnly  been  regarded  as  the 
law  of  this  country,  sustained  by  repeated  decisions. 

Whenever  suit  has  been  or  shall  be  instituted,  to  divest 
the  title  of  an  alien,  it  has  been  and  must  be  by  the 
state  in  which  the  land  is  situate,  and  not  by  the  federal 
government.  The  land,  in  such  case,  becomes  the  pro- 
perty of  the  state,  and  not  of  the  United  States.  It 
follows,  therefore,  assuming  that  an  alien  may  enjoy  this 
qualified  right  under  our  system,  that  the  federal  govern- 
ment cannot  divest  his  title,  or  impose  upon  a  state  the 
obligation  to  do  it,  and  therefore  may  be  subject  to  in- 
conveniences which  it  cannot  overcome  or  counteract. 

The  principle  which  I  wish  to  j) resent  for  consideration, 
may  be  illustrated  by  a  reference  to  the  legislation  of  the 
several  states.  Many  states  have  provided  that  aliens 
may  hold  land  under  certain  limitations.  Massachusetts 
and  New  Hampshire  have  provided  by  statute  that  aliens 
may  hold  land  as  eflectually,  to  every  intent,  as  a  citizen 
may  hold  it,  thus  removing,  so  far  as  state  legislation  can 
remove,  one  of  the  disabilities  of  alienage.  This  legisla- 
tion has  been  commended  by  Mr.  Chancellor  Kent  as 
enlarged  and  liberal.  It  no  doubt  may  be  so  regarded. 
It  has  been  upheld  by  judicial  decision.  I  am  unable  to 
perceive  any  principle  uj^on  which  it  can  be  sustained, 
witliout  doing  violence  to  our  system.  A  grant  of  land 
by  the  sovereign  authority  doe^  not  confer  upon  the 
grantor  the  rights  of  a  citizen,  it  does  not  ordinarily  con- 
fer upon  him  the  elective  franchise  ;  but  such  grant  by  the 
sovereign  cannot  be  resumed  by  the  power  whicli   con- 


THE    SCIENCE     OF     GOVERNMENT.  125 

ferred  it,  unless  a  reservation  to  that  intent  be  contained 
in  the  grant.  A  state  having  granted  land  to  an  alien, 
thereby  by  implication  admits  his  capacity  to  hold,  and 
is  estopped  to  reclaim  it  by  reason  of  the  alienage  of  the 
grantee.  In  the  constitution  of  one  of  the  several  states, 
it  is  provided,  that  "freeholders,  and  all  other  inhabitants 
having  acquired  a  prescribed  residence,  shall  be  allowed 
to  vote.'^'  If  this  state  may  rightfully  confer  upon  an 
alien  the  capacity  of  a  freeholder,  an  alien  under  the 
state  constitution,  without  naturalization,  (unless  excluded 
by  especial  and  doubtful  constitutional  legislation,)  may 
become  an  elector  in  the  federal  government,  may  exer- 
cise the  elective  franchise,  which  would  be  a  clear  viola- 
tion of  our  system,  and  a  direct  evasion  of  the  exclusive 
power  of  congress  to  regulate  and  impose  the  terms  and 
conditions  upon  which  the  benefits  and  privileges  of  a 
citizen  may  be  conferred.  If  a  state  may  allow  an  alien 
to  hold  land,  to  be  exempt  from  any  one  of  his  disabili- 
ties, I  see  no  ground  upon  which  to  say  a  state  may  not 
remove  all  his  disabilities,  and  in  fact  may  say,  without 
reference  to  the  federal  government,  who  shall  and  who 
shall  not  enter  its  territory. 

It  is  laid  down  by  writers  upon  the  law  of  nations,f 
"  that  the  sovereign  may  forbid  the  entrance  of  his  terri- 
tory, either  to  foreigners  in  general  or  in  particular 
classes,  or  to  certain  persons,  or  for  certain  particular  pur- 
poses, according  as  he  may  think  it  advantageous  to  the 
state."  "  Since  the  lord  of  the  territory  may,  whenever 
he  thinks  proper,  forbid  its  being  entered,  he  has  no 
doubt  a  power  to  annex  what  conditions  he  pleases  to 
the  permission  to  enter."  At  the  adoption  of  the  consti- 
tution, the  several  states  were  sovereign,  and  each  was 


*  Constitution  of  New  Ilampsliiro. 

t  Vattel,  Law  of  Nations,  book  2,  ch.  7,  sec.  94  ;  and  cb.  8,  sec.  100. 


126  THE     SCIENCE     OF     0  0  VEKNMENT. 

lord  of  its  territory,  and  might  rightfully  say  who  should 
euter,  \vho  should  not,  who  might  own  land,  who  should 
be  a  citizen.  Since  the  adoption  of  the  federal  constitu- 
tion, the  states  have  no  foreign  policy,  no  right  to  enter 
into  compacts  with  foreign  states,  or  to  confer  upon 
foreigners  any  jjolitical  privileges  or  political  exemptions. 
Upon  this  question,  the  present  chief  justice  of  the  United 
States,  (Mr.  Taney,)  in  an  opinion  wherein  he  dissented 
from  the  judgment  of  the  court,  entertained  different 
views,  which  he  expressed  with  great  force,  in  his  accus- 
tomed clear  and  distinct  language.  He  says,  "  it  is  clear 
upon  principle  and  upon  authority,  that  the  several 
states  have  a  right  to  remove  from  among  their  people, 
and  to  prevent  from  entering  the  state,  any  person,  or 
class  or  description  of  persons,  whom  it  may  deem  dan- 
gerous or  injurious  to  the  interests  and  welfare  of  its  citi- 
zens ;  and  that  the  state  has  the  exclusive  right  to  deter- 
mine, in  its  sound  discretion,  whether  the  danger  does  or 
does  not  exist,  free  from  the  control  of  the  federal  gov- 
ernment." '•'■  In  the  same  opinion  it  is  conceded, "  that  the 
power  to  exclude  persons  cannot  be  concurrent ;  that  the 
sovereignty,  whether  it  belongs  to  the  general  or  to  the 
state  government,  which  possesses  the  right,  must  in  its 
exercise  be  altogether  independent  of  the  other."  The 
views  entertained  by  the  chief  justice,  were  not,  apparent- 
ly, adopted  by  the  court,  which  conceded,  that  a  state 


*  The  Passenger  Cases,  7  How.  Kep.  4C6,  467.  The  language  of  the  chief 
justice  is  broad  and  comprehensive.  In  considering  its  import,  it  should  be 
borne  in  mind,  that  the  foreign  political  relations  of  the  country  are  confided 
exclusively  to  the  federal  jurisdiction,  to  the  exercise  of  which  successfully,  an 
exclusion  of  aliens  may  be  essential.  It  should  also  be  remembered,  that  the 
safety  of  a  stite  is  not  the  only  matter  to  be  upheld  and  preserved.  The 
safety  of  the  United  States  embraces  that  of  the  several  states,  and  is,  therefore, 
more  important  and  comprehensive.  If  the  residence  of  an  alien,  or  a  class  of 
aliens  in  general,  is  dangerous  to  the  peace  of  the  United  States,  the  federal 
sovereignty  mav  and  umst  exclude  him  or  them. 


THE     SCIENCE     OF     GOVERNMENT.  127 

lias  a  right  to  repel  from  her  shores  lunatics,  idiots,  crimi- 
nals, or  paupers,  which  any  foreign  country,  or  even  one 
of  her  sister  states,  might  endeavor  to  thrust  upon  her. 
This  limited  right  has  its  foundation  in  the  sacred  law  of 
self-defence,  which  no  power  granted  to  congress  can  re- 
strain or  annul.'''  If  a  state  may  exercise  an  unlimited 
power  of  admitting  or  excluding  any  person,  at  its  discre- 
tion, foreign  consuls  may  be  compelled  to  hold  their 
places  at  the  will  of  a  state,  and  not  by  permission  of 
the  federal  government,  a  position  for  which  no  one  will 
contend. 

In  our  treaties,  as  has  already  been  stated,  provision 
has  been  made,  that  certain  aliens  should  not  be  despoiled 
of  their  land  to  which  they  should  make  claim,  but 
should  be  allowed  to  retain  the  same,  to  the  same  extent 
as  they  might  if  they  had  been  citizens.  This  provision, 
contained  in  our  treaties,  has  been  sustained  as  an  un- 
doubted exercise  of  rightful  authority  on  the  part  of  the 
federal  government,^  by  many  decisions  of  the  sujDreme 
court  of  the  United  States.  If  the  federal  government 
may  in  one  instance  say,  that  an  alien  shall  hold,  or  may 
hold  land,  it  may  say  so  in  all  cases,  and  no  state  can  say 
the  contrary. 

If  there  is  any  one  power,  which  from  its  character 
and  purpose  should  be  regarded  as  supreme  and  exclu- 
sive, in  the  federal  sovereignty,  it  is  the  power  or  the 
powers  which  relate,  or  may  relate,  to  the  foreign  rela- 
tions of  the  country ;  with  these  the  several  states  have 
no  occasion  for  the  power.  So  far  as  I  have  been  able  to 
analyze  our  system,  keeping  in  mind  its  great  and  para- 
mount objects,  I  can  find  no  warrant  for  saying,  that  a 


*  The  Passenger  Cases,  7  How.  Kep.  457,  Mr.  Justice  Wayne, 
t  Orr  V.  Hodgson,  4  Wheat.  Eep.  453 ;  Blight  v.  Rochester,  7  Wheat.  Rep. 
535. 


128  THE    SCIENCE    OF     GOVERNMENT. 

state  may  authorize  an  alien  to  hold  land,  or  in  any  other 
way  may  remove  finy  one  of  his  disabilities.  I  am  un- 
able to  see  how  the  power  of  naturalization,  which  has 
been  conferred  upon  the  federal  goverament,  can  be  en- 
larged or  diminished  by  any  state  constitution  or  state 
law ;  such  power  must  be  regarded  as  supreme,  as  exclu- 
sive in  the  federal  government,  throuii-hout  all  its  immu- 
nities  and  its  incidents. 

The  power  to  pass  uniform  laws  upon  the  subject  of 
bankruptcies,  has  been  conferred  upon  congress.  At  the 
time  of  the  adoption  of  the  federal  constitution,  the 
several  states  were  indebted  to  a  large  extent ;  the  citi- 
zens were  in  a  similar  condition  of  indebtment.  Com- 
merce was  depressed,  the  internal  trade  and  resources  of 
the  country  were  limited.  This  depression  and  embar- 
rassment was  more  extensive  in  some  than  in  other  of 
the  states.  Jealousy  and  suspicion,  no  doubt,  existed  be- 
tween them.  Notwithstanding  these  difficulties,  it  was 
essential  to  the  integrity  of  the  proposed  union,  that 
public  and  private  laitli  should  be  preserved,  that  public 
and  private  obligation  should  be  performed.  It  was  well 
known  to  those  who  framed  the  constitution,  that  new 
states  were  often  inclined  to  shield  their  citizens,  by  the 
adoption  of  a  system  or  series  of  stay  or  stop  laws,  by 
legislating  for  the  benefit  of  delators,  to  the  injury  and 
exclusion  of  the  lawful  rights  of  creditors.  To  obviate 
this  possible  state  of  things  was  one  of  the  motives 
which  induced  the  power  to  regulate  bankruptcies. 
Another  motive  was,  to  provide  for  the  unfortunate  debt- 
or, who,  b}'  accident  or  misadventure  beyond  his  control, 
might  be  unable  to  perform  his  undertakings.  Bank- 
rupt laws  were  originall}^  designed  for  the  benefit  of  mer- 
chants, and  not  for  persons  engaged  in  other  pursuits. 
The  reason  of  the  distinction  is  aj^parent  and  well  founded, 
whether  it  be  considered  as  a  political  or  moral  element. 


THE     SCIENCE     OF     GOVERNMENT.  129 

The  operations  of  merchants  are  extensive,  require  the 
employment  of  large  sums  of  money  and  of  credit,  which 
must  be  exposed  to  perils  and  hazards,  which  no  human 
foresight  or  integrity  can  guard  against  or  prevent.  In 
sucli  cases,  it  is  important  to  the  citizen  and  his  family, 
and  to  the  community,  that  his  shackles  should  be  broken, 
so  that  he  may  resume  his  avocation,  free  from  the  de- 
pression which  continued  embarrassments  might  produce 
upon  his  physical  and  mental  powers. 

Those  engaged  in  other  pursuits  are  not  exposed  to 
similar  hazards ;  by  prudence  and  economy,  which  are 
essential  to  their  welfare  and  to  the  character  of  the 
community,  they  may,  generally,  protect  and  provide  for 
themselves.  To  induce  them  to  do  this,  as  a  general 
principle,  they  should  be  held  to  a  performance  of  their 
obligations,  otherwise  they  may  become  indifferent  and 
heedless  of  their  own  interests,  and  of  the  interests  of 
those  confided  to  their  protection.  Is  this  power  exclu- 
sive in  the  federal  government?  The  uniformity  re- 
quired, cannot  be  obtained  by  state  legislation.  If  the 
question  is  to  be  determined  by  a  mere  reference  to  the 
language  by  which  the  power  is  conferred,  no  distinction 
can  be  made  between  this  power  and  that  of  naturaliza- 
tion. The  two  powers  are  given  in  the  same  clause  and 
in  the  same  terms.  Is  the  object  the  same  ?  It  may  be 
said  that  the  one,  the  power  of  naturalization,  is  foreign, 
and  external  in  its  character ;  that  the  other  is  internal, 
and  therefore  a  difference  of  result  may  well  exist.  The 
power  over  bankruptcy,  although  it  operates  upon  the 
people  within  the  country,  upon  citizens,  is  undoubtedly 
in  its  principal  element  and  purpose  foreign  and  exter- 
nal. It  was  designed  to  prevent  the  several  states  from 
a  course  of  legislation  w^hich  might  release  its  citizens 
from  a  performance  of  their  obligations  made  with  the 
citizens  of  foreign  nations,  from  a  performance  of  their 

17 


130  THE     SCIENCE     OF     GOVERNMENT. 

obligations  made  with  the  citizens  of  the  other  states 
of  the  union.  It  was  designed  to  prevent  the  several 
states  from  passing  laws,  conferring  upon  their  citizens  a 
preference  or  mimunity  not  conceded  to  the  citizens  of 
other  states,  which  might  be  entitled,  and  should  be  en- 
titled to  protection.  The  power  of  bankruptcies  Ijecamc 
the  subject  of  judicial  discussion  soon  after  the  adoption 
of  the  constitution,  and  it  was  held,  that  the  power  of 
congress  was  supreme,  but  not  exclusive.  That  the  sev- 
eral states  might  pass  bankrupt  and  insolvent  laws,  pro- 
vided congress  had  not  exercised  its  power,  and  even 
when  congress  had  exercised  the  power,  the  several  states 
might  proceed  with  their  laws,  so  far  as  they  could  legis- 
late without  producing  any  conflict  with  any  provision  or 
law  of  the  United  States.  The  state  laws  passed  under 
this  supposed  power,  however,  by  reason  of  a  provision 
in  the  constitution  which  prohibits  a  state  from  passing 
any  law  which  shall  violate  or  impair  the  obligation  of  a 
contract,  have  been  confined  to  their  own  citizens,  to 
contracts  made  after  the  passage  of  the  law,  to  contracts 
made  between  the  citizens  of  the  state  by  which  the  law 
may  have  been  made,  and  therefore  have  had,  and  can 
have,  only  a  limited  operation.  A  state  law  cannot  ope- 
rate to  release  a  debtor  from  an  oblisjation  contracted  or 
entered  into  with  a  foreign  citizen  or  with  a  citizen  of 
another  state,  so  that  no  effectual  law  of  bankruptcy 
can  be  made,  except  by  federal  legislation.  In  the  case 
in  which  it  was  held,  that  congress  has  not  the  exclusive 
power  over  bankruptcies,  the  opinion  was  maintained  and 
sustained  with  great  ability,  and  upon  grounds  of  great 
plausibility,  aided,  no  doubt,  by  a  consideration  of  conve- 
nience. The  late  and  most  eminent  chief  justice  says, 
"  If,  in  the  opinion  of  congress,  uniform  laws  concerning 
bankruptcies  ought  not  to  be  established,  it  does  not  fol- 
low that  partial  laws  may  not  exist,  or  that  state  legisla- 


THE    SCIENCE     OF     GOVERNMENT.  131 

tion  on  the  subject  must  cease.  It  is  not  the  right  to 
establish  these  uniform  laws,  but  their  actual  establish- 
ment, which  is  inconsistent  with  the  partial  acts  of  the 
states."  '■■'-  In  pronouncing  this  opinion,  it  cannot  be 
doubted  that  the  mind  of  the  court  was  influenced  to 
some  extent  by  a  supposed  difference  between  insolvent 
and  bankrupt  statutes  ;  the  former,  according  to  the  gen- 
erally received  opinion,  operating  only  to  discharge  the 
person  from  arrest,  leaving  his  future  property  liable, 
whereas  the  latter,  a  bankrupt  statute,  discharges  not 
only  the  person  but  the  contract. 

Mr.  Justice  Story,  in  his  commentaries,  accedes  to  this 
opinion  as  the  law  of  the  land,  because  it  had  been  so  de- 
cided. In  his  discussion,  however,  of  the  subject,  it  is 
evident  that,  independent  of  adjudication,  he  entertained 
a  different  view.  He  says,  there  are  peculiar  reasons, 
independent  of  general  considerations,  why  the  govern- 
ment of  the  United  States  should  be  intrusted  with  this 
power.  They  result  from  the  importance  of  preserving 
harmony,  promoting  justice,  and  securing  equality  of 
rights  and  remedies  among  the  citizens  of  all  the  states. 
It  is  obvious,  that  if  the  power  is  exclusively  vested  in 
the  states,  each  one  will  be  at  liberty  to  frame  such  a  sys- 
tem of  legislation  upon  the  subject  of  bankruptcy  and 
insolvency,  as  best  suits  its  own  local  interests  and  pur- 
suits. Under  such  circumstances,  no  uniformity  of  sys- 
tem or  action  can  be  expected.  No  state  can  introduce 
a  system  which  shall  extend  beyond  its  own  limits,  and 
the  persons  who  are  subject  to  its  jurisdiction.  He  adds, 
the  power  is  important  in  regard  to  foreign  countries,  and 
to  our  commercial  intercourse  with  them.  The  existence 
of  the  power  is  useful  as  a  check  upon  undue  legislation. 


*  Sturges^i;.  Crowninshield,  4  Wheat.  Rep.  414,  415. 


132  THE    SCIENCE    OF    GOVERNMENT. 

and  as  a  means  of  redressing  any  grievances  sustained  by 
foreigners  in  commercial  transactions/'^ 

So  far,  the  theory  applied  to  many  of  the  powers  of  the 
federal  government,  "which  authorizes  the  several  states  to 
act  upon  matters  upon  which  congress  may  not  have  ex- 
ercised its  admitted  power,  has  produced  no  serious  prac- 
tical evil  or  dithculty.  I  have  no  doubt  it  has  been  conve- 
nient. It  cannot,  however,  fail  to  be  seen,  that  it  has  ele- 
ments which  may  and  must,  if  carried  out  to  its  legiti- 
mate extent,  produce  evil  and  ultimate  death  to  our  sys- 
tem and  its  institutions.  If  a  state  may  act  in  any 
particular  case  because  congress  has  not  acted,  it  may, 
upon  the  same  principle  and  with  the  same  propriety,  act 
in  all  similar  cases.  Unless  the  powers  of  the  two  gov- 
ernments are  to  be  sought  for  and  ascertained  in  their 
constitutions,  and  nowhere  else,  they  must  be  uncertain 
and  undefined  ;  they  should  have  certainty  and  precision, 
and  by  holding  the  powers  of  each  government,  as  hav- 
ing life  and  vitality  independent  of  the  action  of  the 
other,  this  certainty  and  precision  may  be  obtained ; 
each  government  will  exercise  its  own  power. 

The  several  states  may  and  will  exercise  powers  simi- 
lar to,  but  not  the  same  with,  those  of  the  federal  govern- 
ment, for  their  own  purposes,  so  far  and  so  far  only  as 
similar  powers  can  be  exercised  without  encroaching  upon 
those  confided  to  the  federal  government.  Much  to  be 
preferred  it  is,  that  some  purpose  which  in  itself  may  be 
important,  or  some  matter  of  convenience  should  fail  of 
accomplishment,  than  that  the  S3rinmetry  of  our  system 
should  be  marred  by  the  introduction  of  any  dangerous 
or  unsound  principle  or  system  of  construction. 

Another  power  of  congress  is  that  of  providing  for  the 
punishment  of  counterfeiting  the  public  securities. 

*  Storj-  on  Con.  U.  States,  book  3,  ch.  16,  sections  540,  545. 


THE    SCIENCE     OF     GOVERNMENT.  lod 

In  former  timeSj  tampering  with  the  coin  of  the  king 
was  regarded  as  treason,  and  punishable  by  death.  The 
severity  of  the  pmiishment  cannot  at  the  present  time  be 
doubted.  The  principle  which  dictated  it,  although  car- 
ried to  an  extreme,  cannot  be  denied.  Government  must 
be  sustained  and  upheld,  and  it  must,  therefore,  provide 
for  its  own  security,  for  the  integrity  and  safety  of  the  im- 
plements by  which  its  functions  and  purposes  are  to  be 
performed.  If  the  public  securities  can  easily  and  without 
danger  be  counterfeited,  their  value  and  ability  to  accom- 
plish the  purpose  and  duty  of  government  will  be  de- 
feated. To  avoid  an  evil  of  this  description,  every  gov- 
ernment must  be  clothed  with  authority  to  protect  itself, 
and  the  agent  or  agencies  by  which  its  trusts  are  to  be 
performed. 

Counterfeiting  a  public  security,  or  tampering  with  the 
coin  or  securities  of  a  country,  is  more  disastrous  in  its 
consequences  than  possibly  can  be  the  counterfeiting  or 
tampering  with  a  private  contract  or  security.  In  the 
one  case,  the  evil  falls  upon  the  public,  upon  the  com- 
munity, as  a  society  ;  in  the  other,  it  produces  wrong  and 
injury  only  to  private  right,  and  is  not  so  extensive  in 
its  influence.  As  to  the  extent  and  character  of  the 
power  under  consideration,  no  difference  of  opinion  has 
ever  arisen.  It  is,  in  its  nature  and  purpose,  exclusive  in 
the  federal  government.  It  cannot  be  otherwise,  inas- 
much as  every  government  must  be  the  exclusive  judge 
of  offences  against  itself  One  government  cannot  well 
undertake  to  punish  for  wrongs  done  to  another.  The 
state  authority  can  provide  and  does  provide  in  this  par- 
ticular for  itself  It  exercises,  not  the  same,  but  a  power 
similar  to  one  exercised  by  the  federal  government.  The 
powers  of  the  two  governments  upon  this  subject  are 
confined  each  within  its  own  province,  and  no  collision 
or  difficulty  can  be  suggested. 


134  THE     SCIENCE     OF     GOVERNMENT. 

This  power  exhibits  distinctly  the  true  theory  of  our 
system. 

It  shows  the  existence  of  similar  powers,  exercised  for 
and  with  a  similar  intent,  in  two,  not  the  same  distinct 
governments,  each  acting  for  itself,  uninfluenced  and 
controlled  by  the  action  of  the  other,  each  responsible 
for  its  own  fidelity,  neither  amenable  to  censure  for  the 
neglect  or  inability  of  the  other  to  discharge  its  trusts. 


LECTURE    V. 


THE  LEGISLATIVE  BEPAKTMENT  OP  THE  FEDERAL  GOVERNMENT.  —  IT  IS  SUPREME, 
AND  EXCLUSIVE  OF  STATE  LEGISLATION.  —  THIS  POSITION  CONSIDERED  AS  AP- 
PLIED TO  "POST-OFFICES  AND  POST-ROADS," —  " THE  PROGRESS  OF  SCIENCE  AND 
USEFUL  ARTS,"  — "OFFENCES  AGAINST  THE  LAW  OF  NATIONS."  —  RESTRICTIONS 
UPON   THE  LEGISLATIVE  DEPARTMENT. 


The  power  to  establish  post-offices  and  post-roads  is 
conferred  upon  congress.  It  does  not  apparently  furnish 
many  suggestions  of  a  political  or  scientific  character.  It 
seems  to  be  a  mere  matter  of  business,  which  might  con- 
veniently be  managed  by  the  several  states,  each  acting 
within  its  own  territory,  or,  under  certain  legal  regula- 
tions to  prevent  monopoly  and  exorbitant  postage,  it 
might  be  left  to  individual  enterprise.  Those  who  framed 
the  constitution  entertained  a  more  enlarged  view  of  the 
subject,  and  regarded  it  as  a  matter  of  national  concern 
and  interest. 

The  duties  to  be  performed  under  this  power,  and  the 
benefits  resulting  therefrom,  are  not  in  their  nature  local, 
or  more  applicable  to  any  one  state  than  to  any  other. 
When  the  constitution  was  presented  to  the  people  for 
their  adoption  and  ratification,  this  power  attracted  very 
little  notice  or  comment.  It  was  not  resisted  or  approved 
to  any  considerable  extent.  The  writers  of  the  Fede- 
ralist, whose  influence  in  favor  of  the  adoption  of  our  sys- 
tem was  undoubtedly  of  great  importance,  passed  over 


13G  THE     SCIENCE     OF     GOVERNMENT. 

the  subject  b}'  a  mere  reference,  accompanied  by  a 
passing  observation  as  to  the  propriety  of  delegating  its 
control  to  the  federal  government.  It  has  been  sug- 
gested that  the  government  is  only  authorized  to  select 
the  roads  over  which  the  mails  shall  be  transported,  and 
to  designate  the  places  at  which  post-offices  shall  be 
located.  This  limited  construction  has  never  been 
adopted,  has  not  been  sanctioned  by  any  considerable 
number  of  persons,  or  supported  by  any  plausible 
course  of  reasoning.  It  must,  therefore,  be  considered 
as  j^ractically  settled,  that  the  entire  subject,  with  all  its 
incidents,  has  been  confided  to  the  action  of  the  federal 
government.  In  1806,  under  this  power,  congress  under- 
took to  lay  out  and  establish  a  road  from  Cumberland, 
in  the  state  of  Maryland,  to  the  state  of  Ohio,  which 
was  subsequently  extended  beyond  its  original  limit. 
This  exercise  of  the  power  has  been  the  subject  of  much 
discussion,  and  of  considerable  political  excitement.  The 
original  act  provided  for  the  assent  of  the  states  through 
which  the  road  was  to  be  constructed,  a  provision  well 
calculated  to  allay  any  excitement,  to  prevent  any  resis- 
tance, which  at  the  time  might  otherwise  have  arisen ; 
a  course  of  legislation,  however,  which  is  not  to  be  com- 
mended. If  congress  has  a  constitutional  f)Ower  to  estab- 
lish a  road  through  one  or  more  state  or  states,  it  is  a 
power  not  dependent  upon  the  will  of  the  states,  and 
should  be  exercised  upon  the  sole  responsibility  of  the 
government  which  has  the  power.  The  federal  govern- 
ment has  a  right  to  take  private  property  for  its  public 
functions,  to  the  same  extent  and  upon  the  same  princi- 
ple upon  which  the  several  state  sovereignties  take  pri- 
vate property. 

If  congress  has  not  power  within  itself  to  construct  a 
road,  or  embark  in  any  other  enterprise,  the  road  or  the 
enterprise  should  be  left  to  some  other  power  which  may 


THE    SCIENCE     OF     GOVERNMENT.  137    ' 

have  the  authority.  Heretofore  this  exactness  and  pre- 
cision has  not  been  of  urgent  and  unyielding  necessity; 
but  the  importance  of  precision  and  exactness  in  the  exe- 
cution of  every  power  contained  in  our  system,  composed 
of  distinct  sovereignties,  is  becoming  more  visible  and 
apparent  every  hour.  A  government  which  shall  exercise 
any  of  its  powers  by  the  consent  or  at  the  will  of  another 
government,  will  find  it  difficult  to  resume  them,  and  may 
ultimately  lose  all  its  powers.  The  true  and  the  only 
safe  theory  of  our  system  is,  that  neither  the  national  or 
the  state  sovereignty  should  usurp  or  exercise  a  power 
not  its  own ;  that  neither  should  shrink  from  a  perform- 
ance of  its  duty,  or  from  the  exercise  of  its  constitutional 
authority,  leaving  the  result  and  the  consequences  to 
take  care  of  themselves.  The  assumption,  as  has  already 
been  stated,  in  which  our  system  had  its  origin,  depends 
upon  the  integrity  and  intelligence  of  the  people.  This 
can  be  improved  and  sustained  by  the  intercourse  of 
mind  with  mind,  by  an  exchange  of  its  attainments.  This 
is  generally  understood  and  conceded.  It  is  essential  to 
every  class  of  the  community  ;  and  there  is  no  difference 
in  the  nature  of  the  result  which  is  produced  upon  those 
of  little  or  no  education,  and  upon  those  of  more  extended 
study  and  information.  Every  individual  who  visits  for 
the  first  time  a  distant  or  neighboring  place  or  commu- 
nity, carries  with  him,  in  his  own  opinion,  a  portion  of 
the  character,  dignity,  and  importance  which  he  is  accus- 
tomed, or  which  others  are  accustomed,  to  ascribe  to  the 
place  and  its  inhabitants  from  which  he  goes.  Almost  in- 
stantly upon  his  arrival,  he  discovers  many  things,  hears 
modes  of  expression,  perceives  habits  of  life,  which  to 
his  mind,  in  his  judgment,  are  objectionable,  useless,  or 
pernicioUvS.  Soon  the  scales  fall  off,  and  he  learns  that  he 
left  at  home  peculiarities  not  less  objectionable  than  are 
those  by  which  he  is  surrounded.     He  returns  qualified 

18 


138  THE     SCIENCE     OF     GOVERNMENT. 

to  aid  in  the  correction  of  liis  own  defects,  and  improved 
by  the  acqnisition  of  some  thought,  of  some  knowledge, 
which  he  had  not  previously  had  or  attained.  He  returns 
also  with  a  more  favorable  opinion  of  the  people  with 
which  he  may  have  associated,  and  is  more  competent 
and  more  w^illing  to  determine  accurately  in  relation  to 
their  conduct  and  motives.  His  mental  vision,  his  .judg- 
ment, becomes  enlarged.  The  facility  of  correspondenc^e 
and  intercourse  which  is  promoted  by  the  establishment 
of  post-othces  and  post-roads,  must  therefore  be  regarded 
as  an  important  means  of  creating  and  of  maintaining  a 
knowledge  of,  and  respect  for,  those  who,  although  distant 
from  ourselves,  and  having  local  interests  diverse,  and 
possibly  adverse  in  a  limited  sense  to  our  interests,  are 
nevertheless  bound  b}^  the  same  institutions,  by  the  same 
general  fundamental  principles  of  political  economy  by 
w^hich  we  are  bound  and  protected.  In  this  way  our 
union  will  not  depend  exclusively  upon  a  declaration 
engrossed  upon  parchment,  but  wnll  find  its  chief  support 
in  our  affections  and  in  our  judgment. 

The  purpose  of  government,  the  conduct  and  manage- 
ment of  its  operations,  are  accomplished  by  the  facility  of 
intercourse  which  is  furnished  by  an  exercise  of  the 
powder  under  consideration.  These  suggestions  are  suffi- 
cient to  show  that  the  establishment  of  post-offices  and 
post-roads  is  not  to  be  regarded  merely  as  an  ordinary 
convenient  business  matter,  but  as  one  of  the  principal 
implements  by  which  our  institutions  are  to  be  upheld, 
improved,  and  rendered  available  in  the  promotion  of 
civilization  and  of  freedom.  It  must  also  be  seen,  that 
the  federal  government  is  the  most  appropriate  sove- 
reignty by  which  the  power  of  establishing  post-offices 
and  post-roads  should  be  exercised  and  controlled.  If 
the  power  had  been  intrusted  to  the  several  states,  great 
embarrassment  might  and  no  doubt  would  have  arisen. 


THE     SCIENCE     OF     GOVERNMENT.  139 

As  it  now  is,  no  state  can  exclude  from  transportation  by 
the  mail  any  matter  or  thing  which  the  federal  govern- 
ment may  think  reasonable  or  proper  to  admit.  Some  of 
those  who  have  discussed  the  constitution  of  the  United 
States,  and  the  form  of  government  upheld  by  it,  have 
maintained  that  the  power  over  post-offices  and  post- 
roads  is  concurrent  in  the  several  states,  and  may  be 
exercised  by  them  in  subordination  to  the  power  of  con- 
gress. This  is  sustained  upon  the  assumption,  that  the 
states  are  not  prohibited  from  its  exercise ;  that  there  is 
nothing  in  the  power  or  its  subject-matter,  which  may 
not  be  exercised  by  both  governments  at  the  same  time, 
without  prejudice  or  interference. 

If  this  be  the  true  exposition,  the  states  may  establish 
a  post-road,  or  post-office  within  its  own  territory,  where- 
soever congress  has  omitted  to  establish  any.'-'  This 
would  not  be  convenient  to  the  people  of  the  country  as 
a  whole,  and  might  render  the  means  of  communication 
more  uncertain  and  more  expensive.  It  is  a  matter  of 
fact,  that  some  governments  have  assumed  to  open  sup- 
posed suspicious  correspondence,  —  a  power  not  to  be 
justified  in  its  exercise  unless,  and  only  in  extreme  cases, 
where  the  safety  and  integrity  of  the  government  and 
its  existence  might  be  endangered  by  a  neglect  of  its 
exercise. 

If  this  supposed  right  of  supervision  is,  under  any  cir- 
cumstances, to  be  exercised,  it  should  most  certainly  be 
under  the  authority  of  the  federal  government,  which  is 
charged  with  all  the  foreign  relations  of  the  country,  and 
also  with  a  duty  to  uphold  its  own  integrity,  and  the 
republican  form  of  government  of  the  several  states. 
All  the  reasoning  which  may  be  used  to  show  the  fitness 
and  even  necessity  of  uniformity  of  action,  applies  to 

*  Story  oil  Con.  U.  States,  book  3,ch.  18,  sec.  556. 


140  THE     SCIENCE     OF    CfOVERNMENT. 

this  power  with  great  force.  No  state  has  undertaken  to 
estabHsh  j)Ost-ofhces  and  post^roads,  and  j)i'obably  may 
not  make  the  attempt ;  and  no  state  can  undertake  to 
supervise,  or  in  any  manner  control  those  estaljhshed  by 
the  federal  government. 

Another  power  conferred  upon  congress  was  and  is 
designed  "  to  promote  the  progress  of  science  and  useful 
arts,  by  securing  for  limited  times  to  authors  and  invent- 
ors the  exclusive  right  to  their  respective  writings  and 
discoveries."  No  such  or  similar  provision  was  contained 
in  the  articles  of  confederation,  by  which  the  several 
states,  before  the  adoption  of  the  constitution,  were  to 
some  extent  regulated  in  their  fortunes  and  in  their  inter- 
course with  each  other.  The  several  states  passed  laws 
upon  this  subject  to  suit  themselves.  When  these  articles 
were  abandoned  for  a  more  perfect  union,  the  power  to 
encourage  the  advancement  of  the  arts  and  sciences  was 
conferred  upon  congress  without  objection.  It  could  not 
be  made  effectual,  for  the  protection  and  benefit  of  indi- 
vidual authors  and  inventors,  by  the  several  states  as 
independent  sovereignties.  The  j^ropriety  of  the  power, 
and  of  its  enlarged  and  liberal  exercise,  cannot  be  doubted. 
Individuals  cannot  devote  their  time  and  lives  to  the 
attainment  of  extensive  or  important  knowledge,  unless 
they  can  derive  some  personal  benefit  from  their  labor. 
In  every  useful  invention,  in  the  j^roduction  of  useful 
writings,  the  public  have  as  much,  and  frequently  a  greater 
interest  than  the  individual  inventor  or  writer  can  have. 
Every  measure  which  can  with  propriety  be  adopted  to 
enlarge  and  extend  the  progress  of  science  and  of  the 
arts,  is  calculated  to  accomplish  the  elevation  of  the  peo- 
ple, and  must  therefore  be  regarded  as  of  the  utmost 
importance.  The  effect  of  our  S3'stem,  and  the  encour- 
agement which  it  affords  to  the  promotion  of  knowledge, 
has  been  apparent.     Much  advancement  has  been  made, 


THE     SCIENCE     OF     GOVERNMENT.  141 

in  fact  it  may  be  regarded  as  characteristic,  and  may  be 
said  of  the  American  people,  that  they  are  progressive, 
inventive,  and  suggestive,  in  all  their  operations.     Their 
indifference  to,  and  disregard  of,  ancient  landmarks,  well 
in  itself  when  cultivated  in  moderation,  has  occasionally 
produced    more   haste    and  rapidity  than  progress.     A 
striking  and  peculiar  difference  in  the  matter  of  science, 
of  art,  and  of  knowledge  in  general  upon  all  subjects, 
exists  between  our  country  and  many  other    civilized 
nations.     With  few  individual  and  prominent  exceptions, 
we  do  not  boast  of  the  number  of  our  eminently  learned 
and  able  men,  standing  as  it  were  upon  a  pedestal,  far 
above  their  surrounding  fellow-citizens.     In  many  other 
countries,  some  few  are  found  occupying  such  elevated 
positions.     In  this  country,  knowledge  is  generally  dif- 
fused ;  the  entire  jDopulation  have  access  to  the  sources 
of  knowledge.     Public  schools  are   established  and  sup- 
ported in  many  states  at  the  public  expense,  which  are 
oj)en  to  all  who  are  willing  to  accept  the  benefits  which 
may  be  derived  therefrom.     Academies,  private  literary 
institutions,  and   colleges   are  abundant,  so  that  every 
American  citizen,  and  every  resident,  although  not  a  citi- 
zen, may  easily  obtain  all  the  knowledge  which  his  situa- 
tion may  require,  or  which  his  ambition  may  induce  him 
to  attain.     The  result  of  this  provision  for  the  mainte- 
nance of  an  intelligent,  well  educated  people,  is  manifest 
in  all  the  relations  of  life  even  to  a  casual  observer,  and 
it  may,  in  truth,  be  said,  that  the  people  of  this  country 
have  acquired,  as  a  whole,  more  learning  and  information 
than  any  other  population  of  equal  number  can  exhibit. 
The  cause  of  this  diversity  or  peculiarity,  deducible  from 
a  comparison  with  other  countries,  is  obvious.     In  this 
country,  few  individuals  can  afford  the  money  or  time 
requisite  to  acquire  any  more  knowledge  than  their  daily 
pursuits  require ;  they  cannot  devote  an  entire  life  to  the 


142  TJIE    SCIENCE     OF     GOVERNMENT. 

acquisitiou  of  knowledge  merely  and  solely  for  the  sake 
of  its  attainment.  The}'  must  use  their  capital,  mental, 
pecuniary,  and  physical,  for  their  support,  and  for  the 
education  and  improvement  of  their  families.  Knowl- 
edge in  this  country  is,  as  a  distinguishing  feature,  sub- 
stantial and  practical  in  its  results. 

Although  our  individual  knowledge  may  not  be  so  en- 
larged upon  any  particular  subject,  such  as  we  have  ex- 
tends to  a  great  variety  of  subjects.  We  know  some- 
thing upon  almost  every  subject.  This  arises  from  the 
necessity  imposed  upon  every  individual  to  keep  himself, 
so  near  as  may  be,  upon  equal  ground  with  his  neighbor, 
to  understand  to  some  extent  the  science  of  government 
and  the  practical  working  of  our  political  sj^stem,  so  as  to 
discharge  with  fidelity  his  duty  as  one  of  the  people,  who 
are  the  source  of  jjower,  and  the  object  of  its  protecting 
influence.  This  diversity  of  knowledge  is  not  only  re- 
quired by,  but  is  a  result  of,  our  institutions.  It  may  be 
illustrated  by  reference  to  the  legal  profession.  In  Eng- 
land, the  lawyer  devotes  himself  almost  entirely  and  ex- 
clusively to  the  acquisition  of  a  knowledge,  and  to  the 
exercise  of  some  particular  branch  or  department  of  legal 
science,  —  selecting  that  which  may  harmonize  with  his 
peculiar  habit  of  mind.  Not  so  in  this  country,  in  w'hicli 
a  lawyer  is  supposed  to  know  so  much  of  any  and  every 
department  as  he  does  of  any  other  of  legal  science ; 
thus  extending  his  knowledge  and  practice  to  every 
branch  of  his  profession.  The  power  of  congress  to  pro- 
mote science  and  art  is  in  no  sense  local,  or  more  appli- 
cable to  any  one  of  the  several  states  than  to  any  other ; 
the  object  designed  to  be  accomplished  by  it,  is  important, 
and  essential  alike  to  every  state  and  to  every  section  o 
the  country ;  uniformity  of  protection  to  the  author  and 
to  the  inventor  is  also  desirable.  This  uniformity  can- 
not be   attained   by  state   legislation.     The   authority  of 


THE     SCIENCE     OF     GOVERNMENT.  143 

congress  over  this  subject,  so  far  as  I  know,  has  always 
been  regarded  as  exchisive,  and  over  which  no  concur- 
rent jDower  has  been  claimed  in  behalf  of  the  several 
states. 

Another  power  of  congress  is,  to  define  and  punish 
piracies  and  felonies  committed  on  the  high  seas,  and  of- 
fences against  the  law  of  nations.  This  power  is  of  an 
important  character ;  the  peace  and  welfare  of  the  coun- 
try depend  much  upon  the  fidelity  and  firmness  with 
which  it  is  executed.  It  is  supreme  in  the  federal  gov- 
ernment, and  in  its  character  and  purpose  must  be  exclu- 
sive, upon  the  broad  principle,  that  a  state  government 
cannot  exercise  its  authority  beyond  its  own  jurisdiction. 
Since  the  adoption  of  the  federal  constitution,  any  and 
every  power  of  the  several  states  over  piracies  or  felo- 
nies upon  the  high  seas,  has  been  merged  or  transferred 
to  the  federal  government.  Offences  against  the  law  of 
nations  constitute  no  part  of  the  criminal  code  of  the 
several  states,  are  not  the  subject  of  state  control  or  in- 
terference. Every  ship  which  is  owned  by  a  citizen  or 
citizens  of  the  United  States,  which  rightfully  sails  under 
its  flag,  upon  the  high  seas,  is  within  the  jurisdiction  of 
the  federal  government,  and  not  within  the  jurisdiction 
of  the  individual  state  of  which  the  owner  or  owners 
may  be  citizens.  Offences  which  may  be  committed  on 
board  such  ship  are  amenable  to  the  legislation  of  con- 
gress ;  any  insult  or  injury  done  to  such  ship,  by  the  au- 
thority and  under  the  direction  of  a  foreign  government, 
is  an  insult  and  injury  to  the  national  government,  and 
their  prevention,  remedy,  and  redress,  are  to  be  sought 
for  and  to  be  had  by  the  sovereignty  invaded.  Offences 
of  a  piratical  and  felonious  character  upon  such  ship,  upon 
property  or  persons  on  board,  are  punished  by  the  gov- 
ernment whose  citizens  and  property  have  been  assailed, 


144  THE   sciencp:   of   government. 

or,  in  tlic  case  of  certain  offences,  which  are  regarded  as 
being  against  the  peace  and  security  of  all  nations  alike, 
they  may  be  punished  by  any  government  within  whose 
territory  they  may  be  found,  because  they  are  regarded 
as  a  violation  of  the  safety  and  security  which  every  na- 
tion concedes  to  everj^  other,  and  because  every  nation 
has  an  equal  interest  in  their  prevention  and  suppression. 
Piratical  and  felonious  oflences  upon  the  high  seas,  have 
been  the  subject  of  legislation  by  the  congress  of  the 
United  States  from  the  commencement  of  its  jurisdiction 
or  sovereignty.  This  legislation  has  been  firm  and  severe 
in  its  penalties,  and  has  been  carried  into  effect  under 
every  reasonable  safeguard,  which  the  protection  of  the 
innocent  or  the  punishment  of  the  wrong-doer  requires. 
More  than  this,  in  1820  congress,  under  severe  penalties, 
made  the  slave-trade  carried  on  by  its  citizens  j^iracy, 
and  thus  in  advance  of  other  nations  did  much  to  dimin- 
ish the  evil  of  this  odious  traffic.  By  the  statute  refer- 
red to  it  is  provided,  "  that  if  any  citizen  of  the  United 
States,  being  of  the  crew  or  ship's  company  of  any  for- 
eign ship  or  vessel  engaged  in  the  slave-trade,  or  any  per- 
son whatever  being  of  the  crew  or  ship's  company  of  any 
ship  or  vessel,  owned  in  the  whole  or  part,  or  navigated 
for,  or  in  behalf  of,  any  citizen  or  citizens  of  the  United 
States,  shall  land  from  any  such  ship  or  vessel,  and  on 
any  foreign  shore  seize  any  negro  or  mulatto  not  held 
to  service  or  labor  by  the  laws  of  either  the  United 
States,  or  territories  of  the  United  States,  with  intent  to 
make  such  negro  or  mulatto  a  slave,  or  shall  decoy,  or 
forcibly  bring  or  carry,  or  shall  receive  such  negro  or 
mulatto  on  board  such  ship  or  vessel,  with  intent  as  afore- 
said, such  citizen  or  person  shall  be  adjudged  a'  pirate ; 
and  on  conviction  thereof,  before  the  circuit  court  of  the 
United  States  for  the  district  wherein  he  may  be  brought 


THE    SCIENCE     OF     GOVERNMENT.  145 

or  found,  shall  suffer  death."  '''■  So  early  as  1794,  congress 
prohibited  the  carrying  on  the  slave-trade  from  the  United 
States  to  any  foreign  place  or  country .f  And  from  that 
early  period  to  the  present,  efforts  have  been  made  by 
legislation  to  prevent  the  trade.  The  statute  of  1820 
confines  its  penalties  to  American  citizens,  and  excepts 
any  interference  with  slavery  so  far  as  it  is  recognized  by 
the  constitution  of  the  United  States.  It  is  conceded  by 
writers  upon  international  law,  that  slavery  is  a  violation 
of  the  law  of  nature ;  that  all  men  by  nature  are  born 
free ;  but  it  is  not  regarded  as  a  violation  of  the  law  of 
nations.  It  is  said  to  be  a  matter  of  municipal  regula- 
tion, and  is  controlled  by  every  nation,  in  accordance 
with  its  own  sense  of  right  and  wrong,  and  not  to  be  con- 
trolled by  any  other  nation.  So  far  as  this  principle  ope- 
rates to  prohibit  a  nation  from  interfering  with  the  in- 
ternal affairs  of  another,  it  is  undoubtedly  sound,  inas- 
much as  the  morals  of  every  nation,  when  exhibited  only 
within  its  own  territory,  are  matters  peculiarly  appertain- 
ing to  itself  When,  however,  a  nation  permits  its  ships 
or  citizens  to  encroach  upon  territory  over  which  it  has 
no  jurisdiction,  and  to  engage  in  the  slave-trade,  it  can- 
not well  complain,  if  other  nations  regard  it  as  no  less 
objectionable  than  are  those  acts  which  are  regarded  as 
offences  against  every  nation. 

Piracies  and  felonies  upon  the  high  seas  oj)erate  in 
their  consequences  mainly  upon  individuals  and  indi- 
vidual rights,  and  are  not  considered  so  extensive  and 
injurious  as  are  offences  against  the  law  of  nations. 

The  principal  offences  against  the  law  of  nations 
which  are  cognizable  by  judicial  tribunals,  are  :  —  First. 
Offences  against  ambassadors,  which  have  already  been 


*  Stat,  at  Large,  U.  S.,  vol.  iii.  pp.  600,  GOl  ;  May  15,  1820. 
t  Ibid.  vol.  i.  p.  347;  March  22,  1794. 

19 


146  THE     SCIENCE     OF     GOVERNMENT. 

referred  to  in  the  suggestions  made  in  relation  to  the 
rights  of  di])lomatic  agents.  Second.  A  viohition  of  safe 
conduct.  TIdrd.  Libels  against  sovereign  princes  and 
eminent  persons  in  foreign  states.  Fourth.  Piracy.'^'  A 
safe  conduct  is  either  express  or  implied.  Express  safe 
conducts  have  been  given  oxAy  in  time  of  war.  All 
foreigners,  Avho  are  in  the  territories  of  any  state  in  time 
of  peace,  are  there  under  an  implied  safe  conduct.  Dur- 
ing the  continuance  of  safe  conduct,  either  express  or  im- 
plied, a  foreigner  is  under  the  protection  of  the  sove- 
reign ;  and  if  any  violation  of  his  rights,  either  in  person 
or  property,  be  not  punished  by  the  sovereign,  it  l^ecomes 
just  ground  of  war.  It  is  provided,  by  a  law  of  the 
United  States,  that  if  any  person  shall  violate  any  safe 
conduct  or  passport  granted  under  the  authority  of  the 
United  States,  he  shall,  on  conviction,  be  punished  by 
imprisonment  not  exceeding  three  years,  and  be  fined  at 
the  discretion  of  the  court.  That  the  United  States  may 
grant  a  safe  conduct  in  time  of  peace  or  war,  would  seem 
to  be  a  matter  perfectly  plain  and  clear ;  and  that  this 
power  cannot  be  exercised  safety  by  the  several  states, 
because  they  cannot  be  presumed  to  know  the  condi- 
tion of  the  foreign  relations  of  the  country  so  fully  and 
accurately  as  the  federal  government  is  required  to  know 
them.  The  policy  in  this  particular  of  the  general  gov- 
ernment cannot  be  anticipated  by  state  authority.  Whe- 
ther a  safe  conduct,  retrospective  in  its  operation,  can  be 
given  under  the  authority  of  the  federal  government, 
which  shall  be  regarded  as  a  jirotection  and  immunity  to 
the  holder,  for  acts  by  him  previously  done,  is  undoubt- 
edly a  question  of  grave  import  and  of  difficulty.  Under 
some  circumstances,  I  have   no  doubt,  it   may,  in    the 


*  Wiklman,  Law  of  Nations,  vol.  i.  p.  1!)0,  el  s/ij. 


THE     SCIENCE     OF     GOVERNMENT.  147 

exercise   of  its   admitted    sovereignty,  grant  such   pro- 
tection. 

The  federal  government  cannot  release  an  individual 
from  the  consequences  of  an  offence  against  an  individual 
state,  which  in  its  character  and  consequence  is  merely 
and  exclusively  local  and  confined  to  the  state.  Equally 
true  it  is,  that  the  federal  government,  through  its  execu- 
tive, has  power  to  release  offences  against  the  nation. 
Whenever  an  individual,  a  citizen  of  a  foreign  govern- 
ment, shall  do  an  act  by  the  direction  and  authority  of 
his  sovereign  which  may  be  an  offence  against  a  state 
law,  it  may  be  for  the  interest  of  the  country,  of  the 
United  States,  to  require  from  such  foreign  sovereign  the 
proper  indemnity,  and  at  the  same  time  to  permit  and 
require  the  individual,  under  a  safe  conduct,  to  leave  the 
territory  of  the  United  States.  A  case  of  this  descrip- 
tion occurred  in  connection  with  the  Navy  Island  trans- 
action, which  is  familiar  to  you.  Persons,  some  of  whom 
were  undoubtedly  American  citizens,  were  engaged  in 
an  unlawful  enterprise  against  a  neighboring  province, 
which  resulted  in  an  encroachment  upon  the  territory 
of  the  United  States  and  upon  its  sovereignty  by  a 
destruction  of  the  steamboat  Caroline,  within  the  juris- 
diction of  the  United  States ;  an  act  altogether  inex- 
cusable, upon  the  ground  that  a  nation  can  only  exercise 
the  right  of  war  upon  its  own  territory,  or  upon  that  of 
its  enemy,  or  in  one  which  is  vacant  or  common  to  all 
the  world.  No  nation  can  rightfully  pursue  its  enemy 
upon  neutral  ground.  Amos  Durfee,  an  American  citizen, 
on  board  the  Caroline,  was  killed,  and  Alexander  McLeod 
was  indicted  in  a  state  court  of  New  York  for  his  sup- 
posed murder.  The  act  of  McLeod  was  approved  and 
adopted  by  the  British  government,  and  his  surrender 
demanded.  Mr.  Fox,  in  behalf  of  the  British  govern- 
ment, addressed  the  then  secretary  of  state  upon  the  sub- 


148  THE     SCIENCE     OF     GOVERNMENT. 

ject,  and  said,  "the  grounds  upon  which  the  British 
government  make  this  demand  upon  the  government  of 
the  United  States,  are  these :  that  the  transaction,  on 
account  of  which  Mr.  McLeod  has  been  arrested,  and  is 
to  be  put  upon  his  trial,  was  a  transaction  of  a  pubhc 
character,  planned  and  executed  by  persons  duly  em- 
powered by  her  majesty's  colonial  authorities,  to  take 
any  steps  and  to  do  any  acts  which  might  be  necessary 
for  the  defence  of  her  majesty's  territories,  and  for  the 
protection  of  her  majesty's  subjects ;  and  that  conse- 
quently those  subjects  of  her  majesty  who  engaged  in 
that  transaction  were  performing  an  act  of  public  duty, 
for  which  they  cannot  be  made  personally  and  individu- 
ally answerable  to  the  laws  and  tribunals  of  any  foreign 
countr}^" 

The  American  government,  inclined  to  yield  to  this 
demand,  inclined  to  surrender  the  party  accused,  holding 
his  sovereign  responsible,  found  itself  embarrassed  by  the 
peculiarity  of  our  system.  The  facts  presented  a  case 
apparently  beyond  the  control  of  the  federal  government, 
acting  independent  of,  and  without  the  concurrence  of 
the  state  authority.  Fears  were  entertained  by  portions 
of  the  community,  that  a  controversy  with  Great  Britain 
might  arise.  If  the  territory  of  one  of  the  several  states 
is  invaded  by  a  foreign  power,  or  by  the  authority  of 
such  power,  or  by  persons  acting  under  color  of  such 
authority,  whose  conduct  is  subsequently  approved  and 
adopted  by  the  assumed  principal,  it  is  the  duty  of  the 
United  States  to  repel,  and  to  redress  the  injury ;  although 
done  upon  the  territory  of  a  particular  state,  it  is  a  vio- 
lation of,  and  an  attack  upon,  the  sovereignty  of  the 
United  States.  The  federal  government  should,  therefore, 
have  the  power  which  such  an  exigency  may  require. 
The  several  states,  by  conferring  upon  the  federal  govern- 
ment, through  the  instrumentality  of  their  citizens,  the 


THE    SCIENCE     OF     GOVERNMENT.  149 

people,  the  management  of  the  foreign  relations  of  the 
country,  have  conferred  authority  sufhcient  to  execute 
and  uphold  the  trust.     And  I  have  no   doubt  that  the 
federal  government  might  rightfully  have  conferred  upon 
McLeod  a  safe  conduct,  which  the  state  judiciary  should 
and  would  have  respected ;  if  it  had  not,  the  judiciary  of 
the  United  States  could  and  would  have  given  effect  to 
the  immunity  conferred  upon  the  party  accused.     The 
government  of  Great  Britain  having  adopted  the  act  of 
McLeod  as  an  act  for  which  it  held  itself  responsible,  it 
was  competent  for  the  government  of  the  United  States, 
through  its  executive  councils,  to  accept  or  reject  this 
adoption,  and  at  its  election  to  hold  the  individual,  or  the 
government  which  had  adopted  his  act,  as  responsible. 
It  may  have  been  essential  to  the  peace  and  security  of 
the   country,  that  the  United  States  should  accept  the 
proffered  adoption.     Such  an  event  would  defeat,  would 
be  inconsistent  with  the  purpose  of  our  system,   if  the 
United  States  could   not    execute    the    power    of  con- 
ferring upon  the  individual  a  status,  or  position,  which 
would   shield    him   from   state   control.     Whenever  the 
executive     recognize    a     particular    individual    as    the 
ambassador   of    a   foreign  government,   every   tribunal, 
state   and  national,  is  bound  to   accede  to  the  individ- 
ual the  protection  which,  by  the  law  of  nations,  is  ajDpro- 
priate  to  his  station,  and  the  ambassador  may  plead  his 
station  as  a  protection  from  state  power.     The  recurrence 
of  a  similar  case  has  been  provided  for  by  statute.*     In 
1842,  a  statute  was  passed  by  congress,  which  jorovides 
"that  either  of  the  justices  of  the  supreme  court  of  the 
United   States,  or  judge   of   any    district   court  of  the 
United  States,  in  which  a  prisoner  is  confined,  in  addition 
to  the  authority  already  conferred  by  law,  shall  have 

*  Statutes  at  Large,  United  States,  vol.  v.  p.  539. 


150  THE     SCIENCE     OF    GOVERNMENT. 

power  to  grant  writs  of  hahcm  corpus  in  all  cases  of 
any  prisoner  or  prisoners  in  jail,  or  confinement,  where 
he  or  they,  being  subjects  or  citizens  of  a  Ibreign  state 
and  domiciled  therein,  shall  be  committed  or  confined,  or 
in  custody  under  or  by  any  authority  or  law  or  process 
founded  thereon,  of  the  United  States  or  of  any  one  of 
them,  for  or  on  account  of  any  act  done  or  omitted  under 
any  alleged  right,  title,  authority,  privilege,  protection,  or 
exemption,  set  up  or  claimed  under  the  commission  or 
order  or  sanction  of  any  foreign  state  or  sovereignty,  the 
validity  and  effect  whereof  depend  upon  the  law  of 
nations,  or  under  color  thereof  And  if  upon  return  of 
the  process  and  a  hearing  thereon,  it  shall  appear  that 
the  prisoner  is  entitled  to  be  discharged  from  such  con- 
finement, commitment,  custody,  or  arrest,  for  or  by  rea- 
son of  such  alleged  right,  title,  or  authority,  privileges, 
protection,  or  exemption,  so  set  up  and  claimed,  and  the 
law  of  nations  applicable  thereto,  and  that  the  same 
exists  in  fact,  and  has  been  duly  proved  to  the  said  justice 
or  judge,  then  it  shall  be  the  duty  of  the  said  justice  or 
judge  forthwith  to  discharge  such  prisoner. 

This  statute  is  no  doubt  a  constitutional  exercise  of  the 
power  of  congress,  and  affords  an  easy  remedy  to  the  parties 
wdio  may  come  within  its  provisions,  but  it  cannot  be  re- 
garded as  the  creation  of  a  new  right,  or  as  taking  away 
the  power  of  the  several  states,  or  as  adding  to  the  powers 
of  the  federal  government.  It  cannot  be  regarded  as  con- 
ferring upon  an  individual  who  may  be  entitled  to  receive 
the  protection  of  the  statute,  any  new  or  additional  right. 
Privileges  and  immunities  conceded  to  an  individual  by 
the  law  of  nations,  do  not  proceed  from,  or  depend  for 
their  efficacy  upon,  the  legislation  of  any  individual 
country.  They  depend  upon  the  assent  and  recognition 
of  those  nations  which  consider  themselves  bound  by  the 
law  of  nations.     The  inability  or  incapacity  of  a  nation, 


THE     SCIENCE     OF     GOVERNMENT.  151 

by  reason  of  its  peculiar  system  or  internal  construction, 
to  ujDholcl  such  rights,  does  not  and  cannot  furnish  an 
excuse  or  justification  for  the  violation  or  disregard  of 
the  rights  of  an  individual,  which  the  law  of  nations  may 
have  conferred  upon  him.  It  is  upon  this  ground,  inde- 
pendent of  the  statute  to  which  reference  has  been  made, 
that  the  federal  government,  as  I  have  suggested,  through 
its  executive  power,  and  the  aid  of  its  judiciary,  might 
and  should,  in  its  discretion,  have  released  McLeod  from 
the  consequences  of  an  act  which  his  sovereign  had 
assumed.'-' 

Another  prominent  class  of  offences,  for  the  |)revention 
and  suppression  of  which  the  law  of  nations  has  regard, 
is  that  of  libels  against  sovereign  princes  and  eminent 
persons  in  foreign  states.  So  far  as  I  am  aware,  no  legis- 
lation has  been  had  by  congress,  to  provide  for  the  ascer- 
tainment and  for  the  punishment  of  this  class  of  offences. 
It  is  a  matter  exclusively  within  the  power  of  the  federal 
government.  Notwithstanding  the  unlimited  freedom  of 
the  press  which  has  been  indulged  in  this  country,  and 
carried  frequently  even  to  an  excess  derogatory  to  the 
intelligence  and  character  of  the  people,  and  to  our  in- 
stitutions, no  serious  difficulty  from  such  excess  has  oc- 


*  The  judiciary  of  a  state  cannot  be  forcibly  resisted  or  despoiled  of  its  right 
to  retain  and  exercise  its  jurisdiction,  when  it  shall  have  attached.  This  is  a 
general  principle,  applicable  to  all  judicial  tribunals,  and  especially  is  it  applica- 
ble to  the  state  and  national  judiciaries,  acting  under  different  sovereignties. 
Whenever  a  party  sets  up  a  right  or  title  under  a  treaty,  or  law  of  the  United 
States,  such  party,  under  certain  regulations,  has  a  right  to  resort  to  the  judi- 
ciary of  the  United  States.  This  right  is  made  available  by  appeal,  or  by  a 
transfer  from  a  state  court  to  a  court  of  the  United  States,  or  by  a  writ  of  error, 
from  the  supreme  court  of  the  United  States  to  the  state  court.  The  statute 
referred  to  must  be  regarded  as  providing  a  mode  of  transfer,  by  habeas  cor- 
pus, of  a  party  from  a  court  of  one  jurisdiction  to  that  of  the  other,  not  upon 
any  ground  of  supremacy  which  one  court  has  over  the  other,  but  upon  the 
title  of  the  party  impleaded.  The  statute  cannot  be  sustained,  as  a  constitu- 
tional provision,  upon  any  other  hypothesis. 


152  THE    SCIENCE     OF     GOVERNMENT. 

curred  in  our  relations  witli  foreign  countries.  It  must 
be  admitted,  however,  that  dilliculty  may  arise  from  this 
source,  inasmuch  as  every  nation  is  properly  mindful  of 
the  character  and  respect  due  to  its  government,  its  sove- 
reign princes,  and  to  its  eminent  public  men.  Every  in- 
dividual regards  the  opinion  of  his  neighbors,  in  relation 
to  himself,  as  of  considerable  importance.  The  law  of 
every  country,  where  law  is  regarded  as  the  standard  of 
right,  protects  its  citizens  from  libels.  This  protection  is 
due  to  them,  and  is  also  due  and  essential  to  the  safety 
and  well  being  of  the  j^ublic,  of  the  community  as  a 
whole ;  the  peace  and  repose  of  society  cannot  be  sus- 
tained without  such  protection.  Equally  important  it  is 
to  nations,  that  their  intercourse  wdtli  each  other  should 
be  courteous  and  respectful.  In  vain  would  it  be,  for  a 
nation  to  admit  it  has  no  right  to  interfere  in  the  internal 
or  domestic  affairs  of  another  nation,  if  it  may,  through 
the  press  and  the  language  of  its  people,  assail  the  sove- 
reign, or  those  who  stand  high  in  the  public  stations  or 
in  the  aflbctions  of  such  foreign  nation.  The  people  of  a 
country  always  cherish  the  reputation  and  the  acts  of  its 
eminent  men,  as  they  cherish  the  land  of  their  birth. 
More  than  this,  the  people  of  every  civilized  country 
cherish  and  respect  the  reputation  and  character  of  the 
great,  the  good,  and  the  learned  men  of  other  countries, 
as  an  important  and  valuable  example  to  themselves. 
The  results  which  follow  from  a  cultivation  of  science, 
from  the  acquisition  of  art,  the  labor  and  investigations 
of  the  learned,  are  not  and  cannot  be  conlined  within 
territorial  limits.  The  name  and  memory  of  Washington 
and  of  his  acts,  are  regarded  in  other  countries  with  an 
intensity  of  admiration,  which  compares  favorably  with 
the  sentiments  and  emotions  with  which  his  name  is  as- 
sociated in  every  hamlet  and  in  every  house  witliin  the 
limits  of  his  and  of  our  country.     Contributions  from 


THE     SCIENCE     OF     GOVERNMENT.  153 

abroad,  have  been  made  to  the  monument  which  his  coun- 
trymen propose  to  erect  in  commemoration  of  his  vir- 
tues. The  Liw  of  nations,  which  is  mindful  of  the  re- 
spect due  to  foreign  princes  and  to  foreign  eminent  per- 
sons, rests  upon  an  enlarged,  liberal,  and  cultivated  state 
of  morals,  of  manners,  and  of  society  ;  and,  although  no 
statute  has  been  passed  to  carry  the  principle  of  the  law 
into  effect,  it  has  been  regarded,  with  some  few  unimpor- 
tant ebullitions  of  temporary  passion  not  approved  or  in- 
dulged in  by  the  mass  of  the  people,  and  has  been  en- 
forced by  the  self-respect  of  the  people,  and  thereby  our 
civilization,  and  the  effect  of  our  liberal  and  free  institu- 
tions, have  been  made  manifest. 

I  s\m\\  call  your  attention,  in  few  words,  to  another  of- 
fence against  the  law  of  nations,  that  of  piracy.  Upon 
this  subject,  the  legislation  of  congress  has  been  constant 
and  abundant,  from  the  commencement  of  the  federal 
government.  The  propriety  of  guarding,  so  far  as  may 
be,  against  this  offence,  is  universally  conceded.  As  has 
been  before  said,  the  slave-trade  was  made  piracy  by  a 
law  of  the  United  States,  when  carried  on  by  its  own 
citizens,  in  advance  of  similar  legislation  by  other  coun- 
tries. American  ships  engaged  in  the  trade  are  subject 
to  condemnation  and  forfeiture.  In  addition  to  the  pro- 
visions applicable  to  this  subject,  the  legislation  of  con- 
gress is  replete  with  provisions  designed  to  prevent  indi- 
vidual and  unauthorized  inroads  or  invasions  upon  other 
nations,  with  which  the  United  States  are  at  peace.  Re- 
sort has,  on  several  recent  occasion's,  been  had  to  these 
provisions,  and  more  than  once,  for  the  purpose  of  sup- 
pressing and  punishing  such  individuals  as  may  have 
eng-asred  therein.  The  success  of  these  efforts  has  not 
been  such  as  might  have  been  expected.  American  citi- 
zens, enjoying  every  freedom  w^iich  is  compatible  with 
the  safety  of  free  institutions,  naturally  desire  that  their 

20 


164  THE     SCIENCE     OF     GOVERNMENT. 

supposed  freedom  from  oppression  may  be  extended  to 
the  people  of  every  other  land.  The  oppressed  of  every 
country  find  in  the  American  heart  a  sympathy  which, 
unless  chastened  and  guarded,  may  defeat  itself,  may  sub- 
vert its  purpose,  and  may  ultimately  become  the  means 
of  our  own  destruction.  It  is  no  part  of  our  mission  or 
duty  to  extend  our  freedom,  our  civilization,  our  institu- 
tions, or  our  religion,  by  a  disregard  of  the  rights  of 
others,  or  by  a  destruction  of  the  institutions  of  other 
countries,  that  our  institutions  may  be  erected  upon  their 
ruins.  In  this  respect,  public  opinion  as  a  whole,  and  the 
influence  derived  therefrom,  has  been  in  favor  of  justice 
and  of  right ;  has  been  in  favor  of  extending  our  principles, 
not  by  force,  not  by  invasion,  but  by  the  purity  and  fidel- 
ity with  which  we  exhibit  in  and  hy  our  example  and 
conduct,  the  power  and  capacity  of  free  institutions,  and 
their  adaptation  to  all  the  wants,  physical,  mental,  and 
moral,  of  a  well  educated  people.  The  several  powers  of 
the  federal  government  have  been  referred  to ;  they 
have  been  stated  and  discussed,  so  far  as  is  necessary  to 
exhilnt  their  general  features,  and  the  purpose  designed 
to  be  accomplished.  These  powers  are  adapted  to  the 
end  sought,  and  they  show  most  distinctly  the  knowl- 
edge and  appreciation  of  political  economy  which  was 
enjoyed  by  those  who  matured  our  system.  Political 
economy  is  not  and  cannot  rightfully  be  regarded  as  an 
exact  science,  applicable  in  the  same  terms  to  every 
country  and  to  every  people.  The  purpose  which  it  is 
designed  to  accomplish,  whenever  and  wherever  it  may 
be  applied,  is  the  same.  Its  object  is  to  uphold  society, 
to  sustain  and  maintain  inviolate  the  institutions  of  gov- 
ernment, of  society.  It  will  readily  be  perceived,  that  an 
absolute  government,  one  which  exists  by  its  own  power, 
and  which  regards  no  will  except  its  own,  must  be  con- 
trolled by  machinery  and  by  implements  not  essential  to 


THE     SCIENCE     OF     GOVERNMENT.  155 

a  liberal  and  free  government,  which  acts  through  the  in- 
strumentality, more  or  less  immediate,  of  the  people.  It 
must  also  be  perceived,  that  liberal  institutions  are  not 
and  cannot  be  adapted  to  the  condition  of  every  people. 
The  climate  is  not  the  same  in  every  country,  the  pro- 
ducts of  the  earth  are  diverse,  and  must  receive  each  its 
own  peculiar  culture,  otherwise  they  will  be  imperfect 
and  of  little  value.  The  mind  of  man  and  his  habits  are 
controlled  to  some  extent  by  the  external  and  physical 
matters  which  surround  him ;  a  disregard  of  this  fact  in- 
duces some  to  look  only  to  the  natural  rights  of  man,  re- 
gardless of  the  conventional  forms  in  which  these  natu- 
ral rights  must  be  moulded,  and  by  which  they  must  be 
regulated  and  diminished.  If  man  had  attained,  or  could 
attain,  a  perfect  knowledge  of  his  duty,  of  his  interest,  of 
right  and  justice,  accompanied  with  an  uniform  and  un- 
yielding disposition  and  willingness  to  do  right  and  jus- 
tice, his  own  will  would  be  adequate  for  his  government 
as  an  individual  and  as  a  member  of  society.  Such  is 
not  the  fact.  He  must,  therefore,  be  subject  to  control, 
and  that  control  must  be  equal  to  his  inability  or  unwil- 
lingness to  do  right  and  justice.  It  has  been  said,  that 
all  men  are  born  free  and  equal.  This  is  the  position 
from  and  in  which  all  our  institutions  take  their  origin, 
and  in  the  sense  in  which  the  words  are  used  in  our  sys- 
tem they  must  be  regarded  as  sound  and  as  true.  In 
the  sense  in  which  they  are  frequently  used  by  politi- 
cians and  partisans,  they  are  not  sound  or  true,  either  in 
the  law  of  God,  or  of  man.  All  men  are  alike  entitled 
to  be  protected  in  person,  in  character,  in  property,  and 
in  the  exercise  and  cultivation  of  their  endowments. 
And  so  far  as,  by  education  and  integrity,  they  make 
themselves  competent  to  discharge  the  public  trusts,  they 
have  equal  right  to  participate  in  the  exercise  of  such 
trusts. 


156  THE     SCIENCE     OF     GOVERNMENT. 

Our  theory  proceeds  one  step  beyond  this,  and  asserts 
that  men,  educated  and  intelligent,  not  only  have  an 
equal  right,  but  must  be  and  in  fact  are  competent  to 
enjoy  and  to  exercise,  all  the  rights  and  duties  which  ap- 
pertain to  a  state  of  society.  It  does  not,  however, 
assume  that  men  can  live  isolated  from  each  other  and 
without  society,  or  that  they  can  live  without  law.  In 
harmony  with  this  view,  our  system  provides  and  con- 
tains within  itself  ample  means  and  opportunities  for  the 
cultivation  and  advancement  of  the  people ;  and  if  they 
do  not  avail  of  the  benefits  it  is  their  fault,  and  not  the 
fault  or  neglect  of  government.  Experience  thus  far  has 
shown,  that  a  large  proportion  of  the  people  are  willing 
to  use  the  privileges  conferred,  and  are  in  fact  competent 
to  fulfil  the  duties  required  of  them.  That  all  the  peo- 
ple are  or  ever  will  be  competent,  cannot  with  propriety 
be  said  ;  but  so  long  as  a  majority  are,  the  public  institu- 
tions and  the  system  of  government  will  be  adequate  to 
their  purpose.  The  powers  of  the  federal  government  to 
which  I  have  referred  are  supreme  ;  the  several  states 
may  exercise  similar  powers  for  their  own  individual  pur- 
poses ;  to  this  extent  there  has  not  been  any  diversity  of 
opinion.  I  have,  throughout,  assumed  that  the  powers  of 
the  federal  government  are  both  supreme  and  exclusive ; 
that  no  state  can  rightfully  exercise  any  of  these  powers 
for  the  purpose  of  executing  or  carrying  into  effect  the 
duties  of  the  federal  government;  that  the  powers  which 
rightfully  and  constitutionally  appertain  to  the  several 
states  are  certain  and  permanent,  and  are  not  depen- 
dent upon  the  will  of  congress,  or  upon  the  perform- 
ance or  non-performance  by  congress  of  its  duties.  If 
the  question  be  considered  upon  principle,  and  without 
reference  to  judicial  dicta  or  decision,  no  sufficient  reason 
can  be  suggested  in  favor  of  a  contrary  position.  The 
theory  which  assumes,  that  the  several  states  may  exer- 


THE     SCIENCE     OF     GOVERNMENT.  157 

cise  the  powers  of  the  federal  government  for  the  pur- 
j)oses  of  the  federal  government,  has  never  been  asserted 
in  direct  terms,  because  the  enunciation  of  such  theory 
would  disclose  its  fallacy.  The  language  used  by  those 
from  whose  theory  upon  this  subject  I  have  ventured  to 
dissent,  is,  that  the  several  states  may  exercise  some  of 
the  powers  conferred  upon  the  federal  government  in 
cases  in  which  congress  has  not  exercised  them,  and 
where  no  statute  of  the  United  States  contravenes  or  con- 
flicts with  such  exercise  of  power.  This  theory  had  its 
origin  at  the  time  of  the  adoption  of  the  constitution,  and 
was  somewhat  countenanced  by  the  writers  of  the  Fede- 
ralist, who,  anxious  to  procure  an  adoption  of  the  instru- 
ment, exhibited  and  illustrated  its  powers  in  the  most 
favorable  aspect  which  could  with  feasibility  be  pre- 
sented, so  as  to  avoid  an  offence  to  state  pride.  When 
the  constitution  was  submitted  to  the  people  for  adoption 
and  approval,  state  rights  Avere  as  zealously  maintained 
as  they  ever  have  been,  and  every  effort  was  made  by 
the  friends  of  the  proposed  system  to  dispel  the  fears 
which  were  entertained,  actual  or  feigned,  that  a  consoli- 
dated central  government  was  designed,  or  might,  with- 
out design,  be  the  result.  A  slight  examination  of  the 
papers,  designated  the  Federalist,  will  show  the  peculiar 
sensitiveness,  at  the  time,  of  the  public  mind.  These 
papers  cannot,  in  all  cases,  although  written  by  able, 
eminent,  and  patriotic  citizens,  be  regarded  as  the  most 
safe  or  authoritative  source  of  construction.  State  right 
and  state  pride  are  certainly  more  endangered  and 
lessened  by  having  its  legislation  and  its  power  depen- 
dent upon  the  action  of  another  government,  by  having 
its  legislative  enactments  set  aside  by  the  legislation  of  a 
superior  government,  than  they  can  be  by  an  adherence 
on  the  part  of  the  state  to  its  own  admitted,  indisputed, 
and  indisputable  power,  although  it  may  thereby  be  less 


158  THE     SCIENCE     OF     GOVERNMENT. 

extensive,  and  confined  within  narrower  limits.  If  this 
be  the  true  theor3%  the  statutes  of  one  government,  when- 
ever rightfully  and  constitutionally  passed,  can  never 
come  in  contlict  or  in  collision  with  those  of  another. 
Whenever  either  government  shall  transcend  its  legiti- 
mate jurisdiction  or  sovereignty,  it  will  be  checked  and 
restrained  by  the  interposition  of  the  judiciary ;  and  the 
unity  and  harmony  of  our  complex  system,  which  was 
sought  to  be  attained,  will  be  so  perfect  as  it  can  be. 
The  position,  that  the  several  states  may  act  because 
congress  has  not  acted  upon  a  particular  subject,  cannot 
be  regarded  as  logical  or  judicious,  if  the  national  and 
state  sovereignties  are  to  be  regarded  as  distinct  and 
independent  of  each  other,  each  having  been  intrusted 
with  certain  powers  for  different  purposes,  for  the  proper 
and  faithful  execution  or  exercise  of  which  each,  for  its 
own  acts  or  omissions,  is  responsible.  It  is  not  necessary 
or  expedient,  that  all  the  powers  of  government  should 
be  in  constant  exercise  ;  they  are  to  be  used  as  the  exi- 
gencies of  society,  which  are  always  changing,  may  re- 
quire. Whenever  congress  shall  omit  to  exercise  any 
portion  of  the  authority  with  which  it  is  vested,  the  legal 
intendment  and  presumption  to  be  made  from  such  an 
omission  is,  that  the  authority  ought  not  to  be  exercised. 
If  congress,  in  relation  to  a  subject  over  which  it  may 
rightfully  legislate,  should,  by  its  enactment,  say,  that  no 
legislation  thereon  is  at  a  particular  time  or  period  fit  or 
necessary  to  be  had,  such  declaration  would  be  regarded 
as  conclusive  upon  the  subject.  I  am  imable  to  perceive 
any  difiference  in  principle  between  such  legislative  de- 
claration, and  an  entire  absence  of  legislation  or  declara- 
tion upon  the  subject.  I  have  referred  to  the  matter  of 
exclusive  power  in  the  federal  government,  over  and  in 
relation  to  all  matters  confided  to  it,  more  frequently  and 
distinctly  than  any  inconvenience  or  difficulty  which  has 


THE     SCIENCE     OF     GOVERNMENT,  159 

occurred  may  seem  to  require.  As  the  territory  over 
which  the  United  States  has  authority  has  been  increased 
since  the  adoption  of  the  constitution,  and  may  possibly 
be  extended ;  as  the  number  of  the  several  states  has 
been  and  may  be  enlarged ;  as  the  interests,  occupations, 
and  habits  of  the  people  of  one  portion  of  the  country 
may  become  more  and  more  diverse,  distinct,  and  dif- 
ferent from  those  of  other  portions,  the  urgency  and 
necessity  of  a  well-defined,  distinct,  and  constitutional 
line  or  division  of  power  between  the  national  and  state 
sovereignties,  must  and  will  be  more  and  more  apparent. 

The  national  government  is  more  exposed  to  danger 
than  is  the  state,  and  in  one  of  its  departments  is  more 
exposed  to  corruption,  and  is  more  likely  to  encounter 
in  its  progress  the  effects  of  any  sudden  and  temporary 
passion  or  excitement,  in  and  to  which  the  people  may 
be  and  are  liable  to  be  drawn.  Our  security  and  safety 
from  these  dangers,  from  these  causes,  and  the  integrity 
of  our  system,  must  be  obtained  by  a  full  and  manly  con- 
cession to  each  sovereignty  of  its  rightful  power  and 
capacity ;  by  a  firm,  constant,  and  prompt  resistance  to 
any  exercise,  by  the  one  or  by  the  other,  of  any  and  of 
every  power  not  clearly  deducible  from  our  written  char- 
ters or  constitutions,  construed  upon  the  principles  right- 
fully apj)licable  thereto.  If  inconvenience  and  embar- 
rassment may  or  must  arise  from  the  existence  of  two 
sovereignties,  the  legitimate  inconvenience  and  embarrass- 
ment resulting  from  the  system  as  it  is,  is  to  be  preferred 
to  any  other,  is  to  be  endured  until  the  system  shall  be 
amended.  They  cannot  be  avoided  or  cured  by  any  tem- 
porary, contingent  construction,  which  must  be  inade- 
quate in  itself,  and  liable  to  constant  change. 

The  legislative  department  of  the  federal  government 
is  admonished  and  controlled  by  the  constitution  in  sev- 
eral important  particulars,  designed  to  guard  private  right 


160  THE     SCIENCE     OF     GOVERNMENT. 

from  imnece.«:s{irv  restriction  or  interference  by  the  gov- 
ernment. '-The  migration  or  importation  of  such  persons 
as  anji  of  the  .stales  tm/r  exist iiu/  (at  the  adoption  of  the 
constitution)  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  congress  prior  to  the  year  one  thousand 
eight  hundred  and  eight ;  but  a  tax  or  duty  may  be  im- 
posed on  such  importation,  not  exceeding  ten  dollars  for 
each  person."  This  provision  might  be  relied  upon,  if 
considered  without  reference  to  the  history  and  condition 
of  the  country  at  the  time  it  was  written,  as  having  a 
tendency,  by  implication,  to  show  that  the  power  of  regu- 
lating the  migration  and  importation  of  persons  is  vested 
in  congress.  The  clause  recited  was  not  designed  with 
such  intent,  but  relates  exclusively  to  the  subject  of  sla- 
very, to  the  importation  of  persons  who  might,  by  the 
laws  of  the  several  states,  be  regarded  as  property.  It 
may  be  referred  to  as  evidence  of  the  construction  which 
the  framers  of  the  constitution  adopted  in  relation  to 
other  parts  of  the  instrument. 

The  prohibition  is  in  its  terms  temporary,  extending 
only  some  few  years  in  its  operation  after  the  adoption 
of  the  constitution,  and  has  now  ceased  to  have  any  posi- 
tive operation.  It  furnishes  a  clear  and  conclusive  impli- 
cation, that  slavery  as  it  then  existed,  and  as  it  was  by 
the  constitution  permitted  to  e.mt,  was  regarded  as  exclu- 
sively local  in  its  character  and  in  its  existence.  The 
clause  is  confined  to  the  states  existing  as  such  at  the 
time  of  the  adoption  of  the  instrument,  which  were  thir- 
teen in  number.  Notwithstanding  this  prohibitory  clause, 
if  a  new  state,  one  which  had  not  been  established  prior 
to  the  constitution,  had  been  admitted  into  the  union 
before  the  year  eighteen  hundred  and  eight,  congress 
might  have  prohibited  the  migration  or  importation  of 
slaves  into  such  state.  "Whether  the  clause  can  be  re- 
sorted to,  for  any  purpose  of  elucidation,  other  than  upon 


THE     SCIENCE     OF     GOVERNMENT.  161 

the  subject  to  which  it  refers,  I  do  not  consider.  Another 
prohibition  is  found  in  the  clause  which  says,  "  the  privi- 
lege of  the  writ  of  Jiahcas  corjms  shall  not  be  suspended, 
unless  when,  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it." 

This  provision  exhibits  the  great  attachment  and  even 
watchful  solicitude  of  the  American  people,  for  their 
safety  and  security  from  and  against  the  power  of  the 
government.  This  writ  is,  in  fact,  the  most  important 
element  w^hich  any  system  can  contain  for  individual 
indemnity  from  wrong  and  opj)ression.  It  is  speedy  and 
decisive  in  its  operation,  and  is  demandable  as  of  right, 
although  it  may  not  be,  and  is  not  in  practice,  issued  upon 
every  application,  when  it  is  seen  upon  such  application 
that  the  party  applying  is  not  entitled  to  the  relief  sought. 
This  v/rit  is,  and  has  been,  the  constitutional  shield  of  the 
English  citizen  from  the  encroachment  of  the  crown,  and 
its  character  and  importance  were  brought  by  our  ances- 
tors as  one  of  their  inalienable  privileges.  The  same 
principle  which  established  the  securit}'  of  the  writ  of 
habeas  corjms,  induced  a  provision,  that  no  bill  of  attainder 
or  ex  post  facto  law  should  be  passed. 

The  other  prohibitions  are  of  a  more  general  and  pub- 
lic character  and  purpose.  They  provide  that  all  capita- 
tion or  other  direct  tax  shall  be  levied  in  proportion 
to  the  population  as  ascertained  in  a  census,  for  the  tak- 
ing of  which,  at  short  intervals,  provision  is  made.  They 
also  provide,  that  "  no  tax  or  duty  shall  be  laid  on  arti- 
cles exported  from  any  state ;  no  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the 
ports  of  one  state  over  those  of  another ;  nor  shall  ves- 
sels bound  to  or  from  one  state  be  obliged  to  enter,  clear, 
or  pay  duties  to  another."  This  provision  insures  the 
equality  and  relative  importance  of  the  states  in  their 
intercourse  with  each  other,  and  leaves  the  energies  of  the 

21 


162  THE     .SCIENCE     OF     GOVERNMENT. 

citizen  free  to  be  exerted  for  his  own  benefit,  and  uncon- 
trolled, except  within  certain  limits,  by  the  government 
of  which  he  forms  a  more  immediate  part,  and  which  acts 
upon  his  neighbors,  whose  interests  are  closely  interwoven 
with  his  own.  at  the  same  time,  and  with  the  same  force 
and  efiect  as  it  acts  upon  him. 

The  instrument  which  grants  the  legislative  power, 
prohibits  the  withdrawal  of  money  from  the  treasury,  ex- 
cept under  appropriations  made  by  law.  It  provides, 
that  no  title  of  nobility  shall  be  granted  by  the  United 
States ;  that  no  person  holding  any  office  of  profit  or 
trust  under  the  United  States,  shall,  without  the  consent 
of  congress,  accept  any  present,  emolument,  office,  or  title 
of  any  kind  whatever,  from  any  king,  prince,  or  foreign 
state.  These  powers,  these  restrictions,  as  has  been  said 
already,  are  designed  to  protect  the  several  states  and 
their  citizens  from  foreign  control  or  interference ;  to 
protect  the  states  from  each  other ;  to  protect  the  citi- 
zens, in  some  partibulars,  from  state  legislation ;  to  secure 
to  the  citizens  of  other  countries  such  immunities  of 
trade  and  of  intercourse  as  may  be  conceded  to  them  by 
contract,  by  law,  by  the  laws  of  nations,  or  by  our  cour- 
tesy. They  are  competent  to  the  end  contemplated ; 
they  exhibit  the  profound  and  far-seeing  judgment,  the 
love  of  humanity,  the  regard  for  private  right,  of  those 
patriotic  individuals  who  framed  our  constitution.  In 
the  construction  of  this  instrument,  they  have  erected  to 
themselves  an  enduring,  and,  I  trust,  imperishable  monu- 
ment. 


LECTURE    VI. 


THE  STATE  GOVERNMENT.  —  THE  PURPOSE  AND  CHARACTER  OF  ITS  LEGISLATION.  — 
WITHIN  CERTAIN  LIMITS  IT  IS  SUPREME,  AND  EXCLUSIVE  OF  FEDERAL  LEGISLA- 
TION OR  CONTROL. 


By  the  adoption  of  the  federal  constitution,  the  citi- 
zens of  the  several  states,  with  the  consent  and  approba- 
tion of  the  state  sovereignties,  became  citizens  of  the 
United  States,  and  conferred  upon  the  federal  sovereign- 
ty the  powers  which  are  defined  and  enumerated  in  its 
constitution.  The  people,  as  citizens  of  the  United 
States,  are  one,  and  their  relation  to  the  federal  jurisdic- 
tion is  the  same  in  every  state.  The  several  states,  act- 
ing singly  or  together,  in  their  political  capacity,  cannot 
resume  the  consent  yielded  to  the  people,  and  by  them 
conferred  upon  the  national  government.  The  states,  as 
sovereignties,  cannot  enlarge  or  diminish  the  power  of 
the  federal  government,  and  cannot  in  any  manner,  ex- 
cept by  suggesting  the  propriety  of  amendment,  and  by 
application  to  congress  therefor,  interfere  with  its  consti- 
tution. The  congress,  whenever  two  thirds  of  both 
houses  shall  deem  it  necessary,  shall  propose  amendments 
to  the  constitution  of  the  United  States,  or  on  the  appli- 
cation of  the  legislatures  of  two  thirds  of  the  several 
states,  shall  call  a  convention  for  proposing  amendments, 
which  in  either  case  shall  be  valid  to  all  intents  and  pur- 


1G4  THK     SCIENCE     OF     GOVERNMENT. 

poses  as  part  of  the  constitution,  when  ratified  by  the 
legislatures  of  three  fourths  of  the  several  states,  or  by 
conventions  in  three  fourths  thereof,  as  the  one  or  the 
other  mode  may  be  proposed  by  the  congress.  The  re- 
lation of  the  people  to  their  system  of  government  con- 
stitutes an  important  and  controlling  element  in  any  de- 
termination, which  may  be  made  upon  several  c[uestions 
which  have  been  discussed,  and  which  may  hereafter  re- 
quire an  adjustment.  Certain  supposed  state  rights,  the 
supposed  right  of  a  state  to  secede  from  the  union,  the 
supposed  right  of  a  citizen  of  one  state  to  become  the  citi- 
zen of  another  state,  carrying  with  him  the  property  and 
rights  of  property  which  may  be  conceded  to  him  by 
the  law  of  the  state  of  which  he  may  have  been  a 
citizen,  present  for  consideration  questions  of  great  im- 
port. The  decision  of  these  matters,  whenever  decision 
shall  be  required,  must  be  had  by  an  ascertainment  of 
the  position  which  the  several  states  and  their  citizens 
occupy  in  relation  to  each  other  and  to  the  federal  gov- 
ernment. This  relation  is  susceptible  of  definition,  and 
may  easily  be  ascertained  by  reference  to  our  s^'stem,  as 
it  is  defined  in  its  charters.  It  cannot  be  defined  or  as- 
certained, with  safety  or  certainty,  by  a  reference  to  any 
theory  or  system  which  any  man  or  class  of  men  may 
suppose  the  most  beneficial  to  the  people,  or  most  in  ac- 
cordance with  their  speculations.  The  national  govern- 
ment has  certain  jurisdiction,  which  it  exercises  upon 
the  people  of  the  United  States,  which  they  cannot  sub- 
vert or  change,  except  by  an  amendment  of  the  constitu- 
tion, or  by  revolution.  This  relation  of  the  people  to  the 
federal  government  is  direct,  without  any  intervention  or 
authority  of  the  states  as  sovereignties.  The  state  sove- 
reignty has  certain  jurisdiction,  which  it  exercises  upon 
its  citizens,  and  is  not  amenable  to  the  federal  govern- 
ment for  its  exercise.     The  people  retain  their  natural 


THE     SCIENCE     OF     GOVERNMENT.  165 

rights,  so  far  as  they  have  not  surrendered  them  to  the 
national  or  state  control. 

In  the  language  of  an  amendment  to  the  constitution 
of  the  United  States,  "  the  powers  not  delegated  to  the 
United  States  by  the  constitution,  nor  prohibited  by  it  to 
the  states,  are  reserved  to  the  states  respectively,  or  to 
the  people."  It  is  frequently  said,  that  the  laws  of  the 
United  States  are  supreme,  and  that  the  legislation  of  a 
state,  whenever  it  shall  come  in  conflict  therewith,  must 
yield,  upon  the  ground  of  superiority  which  one  govern- 
ment has  over  the  other.  This  mode  of  expression 
may  be  offensive  to  the  sensibility  of  state  pride,  and  on 
that  account,  and  because  it  is  not  precisely  accurate,  is 
objectionable.  The  laws  of  the  United  States,  constitu- 
tionally passed,  are  supreme,  and  no  state  law,  if  the  state 
confines  its  action  within  its  own  jurisdiction,  can  or 
should  come  in  conflict  or  opposition.  If  the  congress 
enact  a  statute  upon  a  subject  not  within  its  power  or 
jurisdiction,  it  is  unconstitutional  and  void  ;  and  any  state 
legislation  rightfully  and  constitutionally  had  upon  such 
subject,  must  prevail,  although  inconsistent  with  a  law 
of  congress.  The  construction  of  the  several  state  govern- 
ments are  substantially  the  same.  Their  departments  are 
essentially  the  same,  and  they  are  similar  to  those  of  the 
federal  government.  The  judiciary  in  some  of  the  states 
is  more  dependent  upon  the  will  of  the  people  than  it  is 
in  other  states,  and  is  more  so  than  is  the  judiciary  of 
the  United  States.  The  right  of  suffrage,  and  the  terms 
upon  which  it  may  be  exercised,  are  not  alike  liberal 
and  extensive  in  all  the  states,  although  it  is  broad 
enough  to  accomplish  the  purpose  designed.  Eligibility 
to  office  is  more  extended  in  some  of  the  states  than  it  is 
in  others.  In  all,  it  is  sufficiently  extensive  to  answer  the 
ambition  of  those  who  desire  office.  In  many  of  the 
states,  the  legislature,  frequently  designated  the  general 


166  THE     SCIENCE     OF     GOVERNMENT. 

court,  has  an  annual  session  ;  in  other  states  the  sessions 
are  not  so  frequent.  The  several  state  constitutions  con- 
tain provisions  for  their  amendment,  Avhich  are  frequently 
exerted  ;  the  legislation  of  all  the  states  is  changeable  from 
year  to  year,  or  from  session  to  session,  so  that  the  laws 
cannot  be  regarded  as  of  a  permanent  and  fixed  cha- 
racter. This  power  of  change  is  essential  to  the  develop- 
ment of  the  resources  and  enterprise  of  the  people,  which 
are  constantly  changing,  are  constantly  enlarged,  and 
directed  to  new  channels  of  improvement.  It  may  be 
said,  without  doing  violence  to  the  truth,  that  this  power 
of  change  is  exercised  more  frequently  than  the  public 
interest  requires.* 


*  The  constitution  of  Massachusetts  contains  a  provision  prescribing  the 
mode  in  and  by  which  it  may  be  amended ;  thus,  upon  well  settled  and 
familiar  principles  of  construction,  excluding  any  and  all  other  modes  of 
amendment.  Notwithstanding  this  provision,  the  general  court,  on  the  7th  of 
May,  1852,  passed  a  statute,  designated  "  an  act  relating  to  the  calling  a  con- 
vention of  delegates  of  the  people,  for  the  purpose  of  revising  the  constitution." 
This  act  evidently  contemplates  and  provides  for  an  amendment  of  the  consti- 
tution of  the  present  system  of  government,  and  not  for  the  suppression  and 
overthrow  of  tlic  present  form,  and  the  erection  of  a  new  system,  or  of  a  new 
constitution,  upon  the  ruins  of  the  old.  In  pursuance  of  this  statute,  a  conven- 
tion is  now  (July  4,  1853)  in  session.  It  is  a  convention  for  one  of  two  purposes, 
to  wit,  to  amend  or  put  down  the  present  constitution.  If  it  be  for  the  purpose 
of  amendment,  it  is  unconstitutional  and  illegal ;  and  this  view  of  the  writer  is 
sustained  by  tbe  opinion  of  the  justices  of  the  supreme  judicial  court,  which  may 
be  found  in  a  supplement  to  the  sixth  volume  of  reports  by  Cushing.  If  the  con- 
vention be  for  the  purpose  of  establishing  an  entire  new  instrument  and  system, 
although  it  may  propose  to  establish  a  similar  instnmient  or  system,  it  is  revolu- 
tionary, disorganizing,  illegal,  and  a  reproach  to  the  commonwealth.  It  stands 
upon  no  better  foundation  than  stood  the  so-called  Dorr  Rebellion  in  Rhode 
Island,  which  the  state  resisted,  and  successfully.  Those  who  consider  the  act 
as  providing  for  an  amendment,  and  to  be  sustained  as  such,  regard  the  pro- 
vision in  the  constitution  which  provides  for  its  amendment,  as  only  directory  ; 
that  the  constitution  is  at  all  times  in  the  hands  and  power  of  the  people.  Ko 
theory  or  doctrine  can  be  more  dangerous,  unsound,  or  subversive  of  our  free 
institutions.  Provisions  are  regarded  as  directory,  in  relation  to  time,  when 
time  is  evidently  immaterial,  and  when,  upon  any  other  construction,  the  pur- 
pose of  government  or  some  fundamental  principle  of  right  must  fail.     When- 


THE     SCIENCE     OP     GOVERNMENT.  167 

In  many  of  the  states  the  constitutions  are  preceded 
by  a  preamble,  or  bill  of  rights,  which  consist  in  an  enun- 
ciation or  declaration  of  certain  fundamental  principles, 
which  appertain,  and  should  appertain,  to  the  people  and 
to  free  institutions.  These  are  not  the  same  in  every 
state,  but  they  are  in  harmony  with  each  other,  and  of 
the  same  general  character.  These  bills  of  right  exhibit 
the  character  of  the  people  by  which  they  have  been 


ever  the  fundamental  law  or  constitution  of  a  sovereignty  prescribes  a  mode 
for  its  amendment,  no  reason  can  be  assigned,  and  no  one  can  rightfully  say, 
that  a  different  mode  and  form  is  equally  competent.  When  a  charter  provides 
that  the  corporators,  as  a  body,  or  that  some  board,  or  component  part  of  a 
corporation,  may  ihake  by-laws,  they  must  be  made  in  the  prescribed  mode ; 
they  cannot  legally  or  effectually  be  made  in  any  other.  In  the  case  of 
Massachusetts,  if  its  constitution  is  to  be  regarded,  an  amendment  cannot  be 
made  by  the  people,  without  the  concurrence  of  two  thirds  of  the  popular 
branch  of  the  general  court,  and  a  majority  of  the  senate,  expressed  for 
two  consecutive  years.  The  act  referred  to  was  passed  by  a  majority  of 
both  branches  of  the  general  court,  only  at  one  session,  for  a  single  year.  In  no 
legal  sense  can  it  be  said,  that  a  provision  which  requires  the  consent  of  two 
thirds  of  a  body  may  be  regarded  as  immaterial  and  directory,  and  as  a  conse- 
quence that  the  consent  of  a  majority  is  sufficient,  much  less  can  it  be  said, 
such  provision  has  no  force  or  meaning,  and  may  be  disregarded.  It  is  due  to 
the  reader  to  say,  that  Mr.  Rawle,  a  writer  upon  the  constitution  of  the 
United  States,  a  gentleman  of  great  ability  and  purity,  entertained  different 
views.  After  the  unsuccessful  effort  of  Dorr,  in  Rhode  Island,  the  legitimate 
government  of  the  state  made  provision  for  the  formation  of  a  constitution,  by 
delegates  of  the  people,  which  was  formed  and  adopted.  The  charter  under 
which  Rhode  Island  had  previously  acted,  contained  no  provision  similar  to 
that  contained  in  the  constitution  of  Massachusetts,  so  that  the  cases  are  dis- 
similar. (See  Luther  v.  Borden,  7  How.  Rep.  1.)  The  administration  of  an 
oath  may  be  regarded  as  a  matter  simply  directory,  et  cetera,  which  are  not 
applicable.  Those  who  advocate  and  uphold  the  legaUty  of  the  convention, 
whatever  they  may  say,  act  upon  an  assumption,  that  a  majority  of  the  people, 
notwithstanding  the  constitution  or  any  thing  therein  contained,  may  as  indi- 
viduals, or  by  their  representatives,  at  any  and  at  eveiy  moment,  as  matter 
of  inalienable  right,  control  the  system  of  govei'nment  which  they  have  estab- 
Hshed.  This  may  be  agreeable  to  the  people,  but  it  is  revolutionary  and  disor- 
ganizing. With  equal  propriety  it  may  be  said,  that  a  majority  of  the  people 
may,  in  all  cases  in  which  they  are  not  restrained  by  the  constitution  of  the 
United  States,  direct  that  this  or  that  part  of  the  constitution,  or  this  or  that 
statute,  shall  receive  a  particular  construction. 


1G8  THE     SCIENCE     OF     GOVERNMENT. 

adopted ;  the  character  of  their  charters  and  of  their  leg- 
islation ;  they  do  not  operate  to  enlarge,  diminish,  or 
destroy  the  express  provisions  contained  in  the  instru- 
ments to  which  they  are  prefixed.  The  preamble  to  the 
constitution  of  the  commonwealth  of  Massachusetts  says, 
"  the  body  politic  is  formed  by  a  voluntary  association  of 
individuals ;  it  is  a  social  compact,  by  which  the  whole 
people  covenants  with  each  citizen,  and  each  citizen  with 
the  whole  people,  that  all  shall  be  governed  b}^  certain 
laws  for  the  common  good.  It  is  the  duty  of  the  people, 
therefore,  in  framing  a  constitution  of  government,  to 
provide  for  an  equitable  mode  of  making  laws,  as  well  as 
for  an  impartial  interpretation  and  a  faithful  execution  of 
them ;  that  every  man  may  at  all  times  find  his  security 
in  them."  This  preamble  is  followed  by  a  declaration  of 
the  rights  of  the  inhabitants  of  the  commonwealth,  and 
constitutes  a  part  of  the  constitution.  These  rights, 
except  so  far  as  they  may  be  controlled  by  express  terms, 
or  by  necessary  intendment  from  other  parts  of  the 
instrument,  cannot  be  successfully  invaded  or  denied  by 
the  legislative  department.  They  exhibit  an  advanced 
state  of  civilization,  and  cannot  be  examined  without 
admiration,  without  producing  a  conviction  in  the  mind 
of  every  intelligent  person,  that  man  has  capacity  ade- 
quate to  perceive  and  to  pursue  the  purpose  of  his  creation. 
All  men,  in  the  language  of  the  instrument  to  which  I 
have  referred,  have  the  right  of  enjoying  and  defending 
their  lives  and  liberties,  of  acquiring,  possessing,  and 
protecting  property.  Religious  freedom  is  secured  to 
every  citizen,  his  religious  profession  and  sentiments  are 
free  from  restraint,  provided  they  are  not  made  so  as  to 
disturb  the  public  peace,  or  interfere  with  the  profession 
or  sentiments  of  others.  No  man,  nor  corporation,  or 
association  of  men  have  any  title  to  obtain  advantage,  or 
particular  and  exclusive  privileges,  distinct  from  those  of 


THE    SCIENCE     OF     GOVERNMENT.  169 

the  communitj.  Every  individual  of  the  society  has  a 
right  to  be  protected  by  it  in  the  enjoyment  of  his  life, 
liberty, and  property, according  to  standing  laws;  is  entitled 
to  remedy,  hy  recourse  to  the  laws,  for  all  wrongs  or  injuries 
which  he  may  receive  in  his  person,  property,  or  charac- 
ter. No  person  shall  be  held  to  answer  for  any  crime  or 
offence  until  the  same  is  fully  and  plainly,  substantially 
and  formally  described,  shall  not  be  compelled  to  accuse 
or  furnish  evidence  against  himself,  shall  have  a  right  to 
produce  all  evidence  favorable  to  himself,  and  to  meet 
the  witnesses  against  him  face  to  face.  The  trial  by  jury, 
which  is  the  great  bulwark  of  liberty,  (except  in  some  few 
cases,)  shall  be  preserved.  The  liberty  of  the  press  is 
considered  essential  to  the  security  of  freedom  in  a  state, 
and  ought  not,  therefore,  to  be  restricted.  The  laws,  or 
the  execution  thereof,  cannot  be  suspended,  except  under 
extraordinary  and  pressing  cases  of  necessity.  Provision 
is  made  for  an  impartial  interpretation  and  administration 
of  law,  to  the  end  that  the  rights  of  every  individual,  his 
life,  liberty,  property,  and  character  may  be  preserved. 
The  legislative  department  shall  never  exercise  the  ex- 
ecutive and  judicial  powers,  or  either  of  them;  the 
executive  shall  never  exercise  the  legislative  and  judicial 
powers,  or  either  of  them ;  the  judicial  shall  never  exer- 
cise the  legislative  and  executive  powers,  or  either  of 
them ;  so  that  the  government  shall  be  a  government  of 
laws,  and  not  of  men.  These  principles  constitute  sub- 
stantially the  foundation  of  every  state  government. 
The  legislative  department  controls  and  regulates,  so  far 
as  it  may,  without  violation  or  subversion  of  the  princi- 
ples to  which  I  have  referred,  rights  of  property,  the 
mode  of  its  acquisition,  enjoyment,  and  disposition,  the 
rights  of  persons,  including  life,  liberty,  character,  and 
contracts ;  and  generally  has  the  supervision  of  the  con- 
duct, morals  and  manners  and  relations  of  the  people 

22 


170  THE     SCIENCE     OF     GOVERNMENT. 

with  each  other,  so  far  as  such  supervision  is  essential  to 
the  peace,  quiet,  and  advancement  of  the  community  as 
a  society.  It  should  always  be  borne  in  mind,  that  free- 
dom does  not  consist  in  the  unlimited  power  of  every 
person  to  act  in  accordance  with  his  individual  will  or 
caprice.  The  liberty,  the  freedom  which  is  vouchsafed 
by  our  institutions,  is  defined  and  regulated  by  law. 
This  liberty  can  be  sustained  only  by  an  unwavering  ad- 
herence to  law  as  it  is,  and  shall  be  declared  and  ex- 
pounded by  those  appointed  to  declare  and  expound  it. 
The  legislative  department  of  this  commonwealth  is 
composed  of  two  branches,  the  senate  and  house  of  rep- 
resentatives, upon  whose  action  the  governor  has  a  quali- 
fied veto.  After  the  exercise  of  the  veto  power  has  been 
had  upon  any  bill,  or  resolve,  the  reasons  of  such  veto 
are  considered,  and  if  two  thirds  of  both  branches  of  the 
legislative  department  adhere  to  the  bill  or  resolve,  it 
becomes  and  has  the  force  and  effect  of  a  law,  notwith- 
standing the  executive  dissent  and  disapproval.  The  leg- 
islative department  of  Massachusetts  has  full  power  and 
authority  to  erect  and  constitute  courts  of  record,  or 
other  courts,  to  be  held  in  the  name  of  the  commonwealth, 
for  the  hearing,  trying,  and  determining  of  all  manner  of 
crimes,  offences,  pleas,  processes,  actions,  matters,  causes, 
and  things  whatsoever,  arising  or  happening  within  the 
commonwealth,  or  between,  or  concerning  persons  inhabit- 
ing or  residing  or  brought  within  the  same,  whether  the 
same  be  civil  or  criminal,  and  whether  the  said  pleas  be 
real,  personal,  or  mixed  ;  which  tribunals  are  invested  with 
all  power  and  authority  which  may  be  required  to  exe- 
cute and  carry  into  effect  the  trusts  reposed  in  them. 
And  further,  the  said  department  has  full  power  and 
authority  from  time  to  time  to  make,  ordain,  and  estab- 
lish all  manner  of  wholesome  and  reasonable  orders,  laws, 
statutes,  and  ordinances,  directions  and  instructions,  either 


THE     SCIENCE     OF     GOVERNMENT.  171 

with  penalties  or  without ;  so  as  the  same  be  not  repug- 
nant to  the  constitution,  as  it  shall  judge  for  the  good 
and  welfare  of  the  commonwealth,  and  for  the  govern- 
ment and  ordering  thereof,  and  of  the  subjects  of  the 
same,  and  for  the  necessary  support  and  defence  of  the 
government  thereof 

This  department  has  authority  to  prescribe  the  tenure 
of  office,  except  so  far  as  the  constitution  has  designated 
the  same  ;  to  impose  all  reasonable  taxes  and  duties.  Not- 
withstanding the  general  terms  used  in  relation  to  the 
legislative  department,  its  power  is  restrained  and  limited, 
so  far  as  its  exercise  is  incompatible  or  inconsistent  with 
the  powers  and  duties  of  the  federal  government.  Its 
power  is  also  restrained  and  limited  by  the  bill  or  decla- 
ration of  rights,  contained  in  the  constitution  of  the  state, 
in  some  particulars.  Private  property  cannot  be  taken 
for  the  public  use,  except  upon  compensation  to  the  citi- 
zen whose  property  may  be  taken.  All  taxes  are  to  be 
established  and  levied  upon  the  consent  of  the  people,  or 
their  representatives  in  the  legislature.  The  people  have 
a  right,  in  an  orderly  and  peaceable  manner,  to  consult 
upon  the  common  good,  give  instructions  to  their  repre- 
sentatives, and  to  request  of  the  legislative  body  by  the 
way  of  addresses,  petitions,  or  remonstrances,  redress  of 
the  wrongs  done  them,  and  of  the  grievances  they  suffer. 
Laws  made  to  punish  for  actions  done  before  the  exist- 
ence of  such  laws,  are  regarded  as  unjust,  oppressive,  and 
inconsistent  with  the  fundamental  principles  of  a  free 
government.  The  constitution  of  Massachusetts  has 
made  ample  provision  for  the  education  of  the  people, 
and  for  the  advancement  of  learning,  by  recognizing  the 
university  at  Cambridge,  and  by  providing  for  other  in- 
stitutions. The  language  of  the  constitution  upon  this 
subject, is  full  and  explicit.  It  says,  "wisdom  and  knowl- 
edge, as  well  as  virtue,  diffused  generally  among  the  body 


172  THE     SCIENCE     OF     GOVERNMENT. 

of  the  people,  being  necessary  for  the  preservation  of 
their  rights  and  liberties ;  and  as  these  depend  on  spread- 
ing the  opportunities  and  advantages  of  education  in  the 
various  parts  of  the  country  and  among  the  different 
orders  of  the  people,  it  shall  be  the  duty  of  legislatures 
and  magistrates,  in  all  future  periods  of  this  common- 
wealth, to  cherish  the  interests  of  literature  and  the  sci- 
ences, and  all  seminaries  of  them,  especially  the  univer- 
sity at  Cambridge,  public  schools  and  grammar  schools  in 
the  towns;  to  encourage  private  societies  and  public  in- 
stitutions, rewards  and  immunities  for  the  promotion  of 
agriculture,  arts,  sciences,  commerce,  trades,  manufactures, 
and  a  natural  history  of  the  country ;  to  countenance 
and  inculcate  the  principles  of  humanity  and  general 
benevolence,  jDublic  and  private  charity,  industry  and 
frugality,  honesty  and  punctuality  in  their  dealings  ;  sin- 
cerity, good  humor,  and  all  social  affections  and  generous 
sentiments  among  the  people." 

Several  times  it  has  been  stated,  all  our  institutions, 
political  and  social,  are  founded  upon  an  assumption  that 
an  intelligent  and  well  educated  people  are  competent  to 
establish  certain  organic  or  fundamental  charters  or  con- 
stitutions of  government,  and,  through  the  instrumenta- 
lity of  these  charters  or  constitutions,  are  competent  to 
govern  themselves.  The  constitution  to  which  reference 
has  been  made,  in  the  clause  recited,  has  made  ample  pro- 
vision to  enable  the  people  to  attain  the  status  or  condi- 
tion required ;  has  furnished  them  an  opportunity  of  ob- 
taining the  education  and  intelligence  which  our  theory 
of  government  demands.  In  this  respect,  they  are  not 
left  to  their  individual  exertions ;  but  the  public  authority, 
at  the  expense  of  the  commonwealth,  has  provided  for 
the  reasonable  education  of  all  the  inhabitants,  without 
reference  to  any  supposed  rank  or  fortunate  condition, 
which  may  result  from  any  casual  or  other  circumstance, 


THE     SCIENCE     OF     GOVERNMENT.  173 

beyond  the  control  of  government.  The  children  of  the 
poor  and  of  the  rich,  are  alike  provided  with  the  means 
of  instruction.  The  children  of  aliens  and  aliens  born, 
are  allowed  the  benefit  of  the  public  schools.  The  legis- 
lature of  Massachusetts  has  even  provided  by  law  for 
the  attendance  by  compulsion,  if  need  be,  of  those  who 
are  unwilling  to  enjoy,  or  are  unmindful  of,  the  benefits 
extended.  The  legislative  department  of  the  common- 
wealth to  which  reference  has  been  made,  is,  in  the  gen- 
eral powers  conferred,  similar  to  the  legislative  depart- 
ment of  the  several  states  which  compose  the  union. 
Some  of  the  states  have  not,  in  their  constitutions,  adopted 
terms  or  provisions  so  full  and  explicit  upon  the  subject 
of  schools  and  education.  In  some  of  the  states,  instruc- 
tion is  not  provided  at  the  public  cost.  These  states, 
however,  are  not  without  the  means  of  instruction,  and 
evidence  is  constantly  furnished  of  efforts  made  in  the 
several  states  to  establish  public  schools ;  and  it  cannot 
be  doubted,  that  they  will  be  maintained  ultimately 
throughout  the  country.  Efforts  and  associations  have 
been  made  and  entered  into  in  the  New  England  states,  and 
probably  in  others,  to  send  teachers  to  the  states  in  the 
west,  so  that  those  w^ho  commence  to  cultivate  and  bring 
forward  new  states  may  be  countenanced  and  encouraged 
by  those  whose  pecuniary  ability  may  be  greater.  This 
disposition  to  aid  and  encourage  each  other  is  not  local, 
or  confined  to  any  one  state,  or  to  any  number  of  states, 
but  may  be  and  is  discovered  in  various  ways  in  every 
state  of  the  union.  In  truth,  the  prosperity  and  advance- 
ment of  every  state  is  a  matter  of  pride  and  gratification 
to  every  other  state. 

The  people  of  the  several  states  are  not  only  progres- 
sive in  enterprise,  in  mind,  and  in  manners,  but  they  are 
somewhat  migratory.  Every  new  state  numbers  among 
its  inhabitants  many  active,  enterprising  citizens,  young 


174  THE     SCIENCE     OF     GOVERNMENT. 

and  old,  from  some  one  of  the  original  thirteen  states. 
These  persons  carry  with  them  their  education,  and  it 
becomes  capital  for  others  so  well  as  for  themselves. 
The  provisions  contained  in  our  system  for  the  education 
of  the  people  cannot  be  appreciated  beyond  their  merit, 
or  be  guarded  with  too  much  care.  The  most  absolute 
and  despotic  government  of  the  world,  by  the  cultivation 
and  education  of  its  people,  would,  in  a  few  years,  find  its 
power  diminished ;  such  diminution  would  continue  until 
the  rights  of  the  people  should  be  regarded  and  recog- 
nized and  exhibited  in  the  establishment  of  mild  and 
salutary  institutions  of  government  and  of  society,  inas- 
much as  the  power  of  a  well  disciplined  intellect  is  more 
certain  and  extensive  in  its  exertions  and  influence,  than 
mere  physical  force  can  be.  The  legislative  department 
of  the  state  sovereignty  extends  to  all  matters  of  a  local 
character,  to  all  the  subjects  which  appertain  to  the  busi- 
ness of  life,  and  concern  the  general  welfare  of  the  body 
politic.  The  power  so  conferred  has  been  executed  in 
conformity  with  the  enlightened  principles  which  gave  it 
existence,  as  may  readily  be  seen  by  an  examination  of 
the  statutes  of  any  one  of  the  several  states.  The  owner- 
ship of  land,  the  title  to  the  soil,  has  always  been  re- 
garded as  conferring  upon  its  possessor  an  influence 
and  imj)ortance  which  is  not  derived  from  other  pro- 
perty. In  many  countries  its  acquisition  is  difficult,  and 
few  only  are  enabled  to  obtain  a  fee-simple  or  perfect 
title  thereto.  In  England,  the  proprietors  of  the  soil  con- 
stitute a  small  proportion  of  population,  compared  with 
the  number  of  its  inhabitants.  Many  restrictions  are 
imposed  and  exist,  which  do  not  exist  in  this  country. 
The  policy  of  Great  Britain,  in  relation  to  the  ownership 
of  its  soil,  has  been  the  subject  of  complaint  from  many 
of  her  citizens  ;  it  has  also  furnished  an  occasion  for  much 
comment  by  the  press  and  by  individuals  of  this  country. 


THE     SCIENCE     OF     GOVERNMENT.  175 

If  these  restrictions  were  removed,  the  effect  would  be 
troublesome  and  dangerous  to  the  government.  It  can- 
not, therefore,  be  regarded  as  strange  and  unaccountable, 
that  they  should  be  adhered  to  with  firmness,  as  they 
have  been  and  are,  to  a  great  extent,  by  those  imme- 
diately connected  with  the  government  and  its  ad- 
ministration. These  restrictions  are  not  so  numerous 
or  burdensome  at  the  present  time  as  they  formerly 
were.  The  popular  voice  and  the  popular  will,  as  it  in- 
creases in  intelligence,  must  be  heard  in  and  under  every 
form  of  government.  The  great  facility  which  is  afforded 
to  every  American  citizen  to  become  an  owner  of  land, 
of  the  homestead  upon  and  in  which  he  lives,  and  which 
is  cultivated  and  improved  by  his  labor  and  by  the  labor 
of  his  children,  is  an  important  barrier  against  the  oppres- 
sion of  government  and  of  those  in  authority.  It  is  also 
favorable  to  the  stability  and  existence  of  the  government. 
It  gives  to  the  occupant  self-respect,  and  he  goes  forth  to 
make  the  wilderness  blossom  like  the  rose,  because  the 
fruit  and  product  of  his  labor  is  his  own.  The  condition 
and  extent  of  civilization,  of  liberty  enjoyed  by  any  peo- 
ple, may  be  ascertained  with  an  almost  unerring  certainty 
by  learning  its  law  applicable  to  the  occupation  and  dis- 
position of  its  soil.  An  eminent  jurist  has  said,  there 
is  nothing  which  so  generally  strikes  the  imagination 
and  engages  the  affections  of  mankind  as  the  right  of  pro- 
perty, or  that  sole  and  despotic  dominion  which  one  man 
claims  and  exercises  over  the  external  things  of  the 
world,  in  total  exclusion  of  the  right  of  any  other  indi- 
vidual in  the  universe.  He  might  with  truth  have  added, 
that  this  sentiment,  or  love  of  dominion  over  property,  is 
more  applicable  to  the  soil,  to  immovable  property,  than 
to  any  other  class.  The  legislation  of  different  countries, 
in  relation  to  land  and  its  title,  is  an  interesting  study,  and 
may  be  examined  with  profit  by  those  who  are  disposed 


176  THE    SCIENCE     OF     GOVERNMENT. 

to  learu  the  progress  of  social  institutions ;  the  result  of 
such  examination  will  satisfy  those  who  make  it,  that  the 
freedom  of  the  people  is  dependent,  to  a  great  extent, 
upon  their  ability  or  inability  to  become  freeholders ;  the 
succession  to  landed  estates  in  Europe  has  been  generally 
regulated  by  the  custom  of  primogeniture.  During  the 
violence  and  confusion  of  the  middle  ages,  land  was  the 
only  species  of  property  which  had  any  thing  like  reason- 
able security  ;  and,  deficient  as  it  was,  that  security  could 
be  enjoyed  only  by  the  possessors  of  large  estates,  who 
could  arm  and  bring  together  a  considerable  number  of 
vassals  and  retainers  to  support  and  defend  their  rights. 
It  was  plainly,  therefore,  for  the  interest  of  the  landed 
proprietors  to  prevent  their  estates  from  being  divided 
into  small  portions,  so  that  they  might  be  transmitted 
entire  to  their  successors.  It  was  customary  in  England, 
from  an  early  period  of  its  history,  to  settle  estates 
upon  individuals  under  certain  conditions  and  stipula- 
tions. Modes,  however,  were  adopted  by  lawyers  and 
by  judges  of  eluding  and  evading  these  conditions. 
To  prevent  and  obviate  such  evasions,  a  statute  was 
passed  in  the  time  of  Edward  II.,  by  which  it  was 
provided  that  estates  should  be  holden  in  conformity  to 
and  in  subjection  to.  the  terms  and  conditions  of  the 
donor.  This  statute  established  a  system  of  perpetual 
entail,  which  was  established  by  the  greater  barons  to 
prevent  not  only  the  alienation,  but  the  forfeiture  of  their 
estates  for  political  offences.  This  statute  jDroduced  many 
inconveniences  and  evils :  children  grew  disobedient  when 
they  knew  they  could  not  be  set  aside ;  farmers  were  de- 
prived of  their  leases  made  by  tenants  in  tail ;  creditors 
were  defrauded  of  the  sums  or  debts  due  to  them ;  trea- 
sons were  encouraged,  as  estates  tail  were  not  liable  to 
forfeiture  longer  than  for  the  tenant's  life.  The  statute 
of  Edward  was  regarded,  for  these  reasons,  as  the  source 


THE     SCIENCE     OF     GOVERNMENT.  177 

and  cause'  of  contentions  and  mischiefs  unknown  to  the 
common  law  before  its  passage. 

The  security  which  this  statute  afforded  to  the  nobihty 
operated  against  its  repeal  for  many  years.  Its  effect, 
however,  was  avoided  to  some  extent  by  indirect  means, 
by  what  was  familiarly  designated  a  pious  fraud  of  the 
lawyers.  This  fraud  consisted  in  the  invention  of  a  ficti- 
tious suit,  known  as  a  common  recovery,  by  the  instru- 
mentality of  which  a  tenant  in  tail  was  enabled,  by  the 
aid  of  the  courts,  to  bar  the  entail  and  change  the  estate 
into  a  fee-simple.  This  mode  of  proceeding  was  in  com- 
mon use  in  many  of  the  states,  until  within  a  few  years ; 
and  many  titles  now  rest  upon  the  efficacy  of  this  inven- 
tion, or  fraud  of  the  lawyers. 

Estates  in  tail  are  common  in  Scotland,  although  under 
restrictions  peculiar  to  that  country,  not  known  to  the 
English  law,  which  restrictions  had  an  influence  to  render 
them  less  objectionable  than  they  otherwise  would  have 
been.  In  this  commonwealth,  and  generally  in  the  seve- 
ral states  of  the  union,  conveyances  of  lands,  or  of  any 
interest  or  estate  therein,  may  be  made  by  deed  executed 
by  any  person  having  authority  to  convey  the  same,  or 
by  his  attorney,  and  acknowledged  and  recorded,  without 
any  other  act  or  ceremony.  A  husband  and  wife  may  by 
their  joint  deed  convey  the  real  estate  of  the  wife.  The 
husband  cannot,  however,  by  any  conveyance  to  which 
the  wife  is  not  a  party,  deprive  her  of  her  right  of  dower 
in  his  estate,  which  right  in  almost  every  state  extends 
to  all  land  susceptible  of  cultivation,  of  which  the  hus- 
band, during  the  continuance  of  the  marriage,  may  have 
seisin  and  title,  although  such  seisin  may  have  been,  or 
be,  of  short  duration.  In  one  state,  at  least,  this  right  of 
dower  does  not  attach,  or  extend  to  any  estate  of  the 
husband,  except  such  as  he  may  be  entitled  to  at  the  time 
of  his  decease,  thus  enabling  the  husband,  by  a  sale  in 

23 


T78  THK     SCIENCE     OF     GOVERNMENT. 

his  lifetime,  to  bar  this  equitable  and  valuable  right. 
Any  person  actually  sei/ed  of  land  as  tenant  in  tail  may 
convey  the  same  in  fee-simple,  by  a  deed  in  common 
form,  in  like  manner  as  if  he  were  seized  thereof  in  fee- 
simple,  and  such  conveyance  shall  bar  the  estate  tail  and 
all  remainders  and  reversions  expectant  thereon.  Any 
person  seized  of  real  estate,  including,  in  some  of  the 
states,  married  women,  under  certain  limitations  designed 
for  their  protection,  may  dispose  of  the  same  by  will. 
Lands  are  also  subject  to  the  payment  of  the  debts  of 
those  who  may  be  the  holders  and  owners  thereof  It 
has  been  holden  in  a  neighboring  state,  that  a  person 
who  has  a  life  estate  in  land,  with  an  unlimited  power  of 
disposition  to  take  effect  at  his  decease,  who  exercises  the 
power  so  conferred,  and  attempts  to  dispose  of  it  as 
though  it  were  his  own,  thereby  subjects  it  to  the  pay- 
ment of  his  debts  in  preference  to  the  objects  of  his 
bounty.  In  this  country,  land  cannot  be  kept  in  the  same 
family  or  line  of  descent,  for  any  great  length  of  time, 
so  as  to  be  be^'ond  the  power  of  alienation.  These  few 
general  incidents  of  land  and  its  ownership  have  pro- 
duced an  entire  change  in  and  from  the  condition  and 
state  of  land  which  existed  at  the  settlement  of  this 
country,  and  which  to  some  extent  exists  in  England  at 
the  present  time.  At  the  adoption  of  our  union,  in 
almost  every  state  the  owner  of  land  was  allowed  to  en- 
tail it,  to  keep  it  in  his  family  for  generations,  and  there- 
by restrain  the  enterprise  of  those  who  were  its  posses- 
sors, and  embarrass  and  retard  the  general  advancement 
of  the  community.  No  legislation  or  legal  principle  has 
done  more,  or  even  so  much  for  the  political  and  social 
improvement  of  the  people,  as  has  been  done  by  those 
provisions  which  authorize  the  tenant  or  holder  of  an 
estate  tail  to  dispose  of  the  same  by  a  simple  deed,  and 
which  subject  such  estate  to  the  payment  of  the  debts  of 


THE     SCIENCE     OF     GOVERNMENT.  179 

the  holder,  and  which  restrain  the  creation  of  estates  in 
a  class  or  line  of  j)ersons  to  the  exclusion  of  others,  over 
which  estate  the  holder  for  the  time  being  has  no  power 
of  alienation,  or  permanent  disposition.  The  accumula- 
tion of  estates  in  families  is  injurious  often  to  the  posses- 
sors ;  is  disadvantageous  to  the  public  welfare,  inconsistent 
and  incompatible  with  free  and  progressive  social  institu- 
tions. The  difference  of  opinion  upon  this  subject,  as 
exhibited  in  American  legislation  and  in  the  writings  and 
opinions  of  those  not  conversant  with  our  system,  is  re- 
markable. Some  half  century  since,  an  intelligent  and 
practical  farmer  in  Scotland  was  requested  to  give  his 
opinion,  w^hether  it  would  be  advantageous  to  the  agri- 
cultural interest  of  his  country,  were  the  tenants,  espe- 
cially those  in  the  best  cultivated  districts,  vested  with 
the  power  of  sub-letting  their  farms ;  and,  supposing  the 
tenants  had  such  power,  and  the  power  of  dividing  their 
farms,  and  of  devising  them  by  will,  what  would  be  the 
probable  influence  of  such  power  on  the  agriculture  of 
the  country  and  the  condition  of  the  tenants. 

At  the  time  these  questions  were  proposed,  it  was  the 
custom  of  landholders  and  owners  to  make  leases  of  large 
quantities  of  land,  for  periods  of  nineteen  and  of  twenty- 
one  years,  the  tenant  having  no  power  of  leasing  or  de- 
vising his  estate.  The  answer,  honestly  given,  no  doubt, 
was  adverse  to  the  theory  which  dictated  the  questions. 
He  says,  "  the  practice  of  letting  land  on  leases  of  nine- 
teen years,  having  been  general  for  nearly  a  century,  and 
the  power  of  sub-letting  having  been  very  rarely  con- 
ceded, the  lands  have  naturally  fallen  into  the  occupancy 
of  that  class  of  persons,  who  engage  in  the  business  of 
agriculture  with  the  full  purpose  of  devoting  their  lives 
to  it.  Much  of  the  superiority  of  Scotch  agriculture  is 
ascribed  to  the  steady,  enterprising  character  of  the  cul- 
tivators.    And  the  system  of  letting  land  upon  leases  for 


180  THE     SCIENCE     OF     GOVERNMENT. 

a  definite  number  of  years,  with  the  prohibition  of  as- 
signing or  sul)-letting,  has  contributed  largely  to  the 
formation  of  that  character  and  enterprise.  A  man  en- 
tering upon  a  lease  for  nineteen  or  twenty-one  years,  with 
the  knowledge  that  it  is  not  in  his  power  to  transfer  it  to 
another,  and  that  his  interest  in  the  fiirra  will  terminate 
at  the  expiration  of  the  stipulated  period,  is  stimulated 
to  a  vigorous  and  earl}-  execution  of  the  necessar}'^  im- 
provements, as  he  knows  that  the  longer  they  are  de- 
layed, the  more  will  the  profits  derivable  from  them  be 
diminished.  To  produce  this  effect,  it  is  indispensable 
that  the  lessee  or  his  heir  at  law  should  possess  the  farm 
during  the  continuance  of  the  lease,  and  consequently 
that  there  should  be  no  power  to  assign  or  sub-let.  This 
individual  su2:)posed  that  the  change  suggested  by  the 
inquiries,  would  operate  unfavorably  upon  the  interests 
and  upon  the  habits  and  character  of  the  people.  He 
spoke  from  his  experience  and  observation.  He  was  a 
stranger  to  the  activity,  enterprise,  and  self-respect  of 
a  people,  free  and  unrestrained,  except  so  far  as  restraint, 
from  the  organization  of  society,  is  essential  to  uphold  it. 
He  admitted  the  existence  of  a  strong  desire  in  a  majori- 
ty of  those,  a  single  remove  or  two  above  the  condition 
of  laborers,  to  possess  a  piece  of  land ;  that  such  desire 
had  been  unequivocally  established  by  the  experience  of 
every  country,  where  facilities  for  its  gratification  had 
been  afforded.  He  admitted  that  this  desire  was  exceed- 
ingly powerful ;  that  every  one  wished  to  be  indeiDcn- 
dent ;  that  those  who  had  attained  the  possession  of  a 
few  acres  of  land,  and  of  a  house,  had  attained,  in  their 
own  estimation,  independence,  or  at  least  had  made  a 
great  advance  on  the  road  to  independence.  The  opin- 
ions and  experience  of  the  individual  to  which  refer- 
ence has  been  made,  are  not  in  unison  or  in  harmony 
with  the  experience  of  this  country,  or  with  our  institu- 


THE     SCIENCE     OF     GOVERNMENT.  181 

tions.  They  furnish  a  strikmg  contrast  between  our  sys- 
tem of  legislation  and  of  government,  and  that  of  the 
country,  comparatively  free  as  it  is,  in  which  such  opin- 
ions were  the  legitimate  result  of  its  internal  institu- 
tions. The  baneful  influences  of  long  leases  have  been 
made  manifest  from  the  turmoils  and  outrages  which  they 
have  produced  in  a  neighbouring  state,  and  have  been 
felt  in  some  of  the  New  England  states,  from  glebe  lands, 
which  are  not  altogether  extinct.  In  relation  to  the 
capacity  of  persons  to  make  wills,  changes  have  constant- 
ly been  in  progress.  The  power  of  devise  was  originally 
extended  only  to  a  portion  of  the  estate  of  the  devisor, 
or  to  estates  derived  by  the  devisor  in  a  particular  mode. 
In  this  country,  few  restrictions  exist ;  the  formalities  re- 
quired are  not  numerous,  or  difficult  of  attainment.  The 
law  applicable  to  the  possession,  the  acquisition,  and  dis- 
position of  land,  to  the  making  of  wills  and  testamentary 
papers,  has  been  constantly  progressive  in  its  liberality 
and  simplicity ;  and  the  result  is,  that  an  adequate  knowl- 
edge of  these  subjects  may  be  acquired  in  a  few  years, 
which  formerly  could  not  be  attained  except  by  the  devo- 
tion of  a  life  to  its  acquisition  and  attainment.  These 
subjects  are  exclusively  within  the  province  of  state  legis- 
lation and  of  state  sovereignty ;  the  federal  jurisdiction 
does  not  extend  to  them,  but  each  state,  according  to  its 
habits,  its  position,  and  its  pursuits,  adopts  regulations 
agreeable  to  its  own  sense  of  right.  These  regulations, 
although  not  the  same  precisely  in  the  different  states, 
are  substantially  the  same,  except  in  one  or  two  of  the 
states,  in  which  the  civil  law,  or  the  law  of  France,  or  of 
Spain,  which  are  influenced  and  somewhat  derived  from 
the  civil  law,  prevails  so  far  as  it  may  not  be  inconsistent 
with  our  political  theory,  or  with  the  republican  institu- 
tions which  flow  from  our  theory. 

Personal  property  is  also  subject  to  state  sovereignty  ; 


182  THE     SCIENCE     OF     GOVERNMENT. 

its  incidents  are  regulated  by  state  law.  Personal  estate, 
in  technical  or  legal  language,  has  no  locality.  Its  title  is 
ascertained  by  the  law  of  the  country  or  state  in  which 
its  owner  has  his  domicil.  A  conveyance  of  personal  estate, 
legal  l)y  the  law  of  the  place  of  which  the  owner  is  a 
citizen,  is  ordinarily  regarded  in  every  other  country  as 
a  legal  transfer ;  this  is  so  as  a  matter  of  comity  and  as 
a  general  legal  principle,  between  countries  not  connected 
with  each  other,  as  part  of  the  same  political  sj^stem.  It 
is  peculiarly  so,  between  the  several  states  of  this  coun- 
try. The  mode  or  form  of  transfer  of  personal  estate 
from  one  person  to  another,  is  not  ordinarily  regulated 
by  arbitrary  or  fixed  rules.  It  may  be  by  delivery,  with 
intent  to  pass  the  title.  It  may  be  by  a  bargain  and 
sale,  without  delivery,  or  by  exchange  or  barter,  a  method 
of  disposition  quite  common  in  new  countries,  or  in 
the  early  stages  of  society.  In  some  instances,  the  title 
passes  between  the  parties  negotiating,  when  it  does  not 
pass  against  other  persons  who  may  have  the  power  to 
acquire  an  interest.  A  creditor  of  the  owner  of  personal 
estate,  may  obtain  a  right  therein,  against  a  party  who 
as  purchaser  may  have  a  vested  title  to  it  against  the 
former  owner.  Some  personal  estate,  such  as  shares  in 
the  capital  stock  of  banking,  manufacturing,  and  other 
corporations,  must  be  transferred  upon  the  books  of  the 
corporation  in  order  to  confer  a  legal  title,  although  the 
beneficial  or  equitable  title  may  be  transferred  without 
such  entry  upon  the  books  of  the  corporation.  The 
ownership  of  vessels  is  ordinarily  transferred  by  written 
bill  of  sale,  and  must  be  so  transferred,  to  confer  upon 
the  vessel  the  character  of  an  American  vessel,  and  the 
protection  and  immunities  of  a  national  character.  The 
title  between  parties  may  be  transferred,  in  this  countr}'-, 
in  a  vessel  without  writing.  The  most  important  statute 
regulation,  in  relation  to  the  transfer  of  property,  is  denom- 


THE     SCIENCE     OF     GOVERNMENT.  183 

inated  the  statute  of  frauds.  This  statute  provides,  "  no 
contract  for  the  sale  of  goods,  wares,  or  merchandise,  for 
the  price  of  fifty  dollars  or  more,  shall  be  good  or  valid, 
unless  the  purchaser  shall  accept  and  receive  part  of  the 
goods  so  sold,  or  shall  give  something  in  earnest  to  bind 
the  bargain,  or  in  part  payment ;  or  unless  some  note  or 
memorandum  in  writing,  of  the  bargain  be  made  and  signed 
by  the  party  to  be  charged  thereby,  or  by  some  person 
thereunto  by  him  lawfully  authorized."  We  received 
the  principles  of  this  statute  from  England,  and  it  is  evi- 
dence of  an  advanced  state  of  society.  The  policy  of 
the  provision  is  wholesome,  inasmuch  as  the  memory  of 
witnesses  is  not  always  a  safe  guide. 

The  object  of  the  law-maker  is  to  prevent  fraud,  to 
prevent  litigation.  It  j)roceeds  upon  a  very  well  estab- 
lished fact,  applicable  to  all  the  conditions  of  life,  that 
evil  can  be  prevented  much  easier  than  it  can  be  cured, 
or  its  effects  avoided  after  its  occurrence.  The  character 
of  a  people  is  exhibited  in  its  legislation  upon  property. 
If  the  statutes  upon  this  subject  are  few  and  simple  and 
easily  understood,  it  may  be  and  should  be  inferred  that 
the  general  integrity  of  the  people  is  undoubted.  Nu- 
merous and  complex  statutes  result  from  a  disposition  in 
the  people  to  avoid  and  resist  a  performance  of  their 
duties.  Examined  by  this  standard,  the  legislation  of  the 
several  American  states  must  receive  the  commendation 
of  those  who  analyze  it,  by  those  who  study  cause  and 
effect. 

Contracts  constitute  another  important  matter  of  state 
legislation.  The  persons  who  may  enter  into  contracts, 
the  form  and  subject-matter  of  contracts,  are  all  regulated 
by  state  authority.  Upon  this  subject,  great  freedom  is 
allowed.  The  citizens  in  this  particular,  with  some  few 
exceptions,  determine,  unrestrained  by  legal  enactments, 
when  and  in  what  undertakings  they  will  embark.     Some 


184  THE     SCIENCE     OF     GOVERNMENT. 

contracts  cannot  be  upheld,  \niless  in  writing.  An  indi- 
vidual ■svlio,  without  consideration,  and  as  an  act  of  friend- 
ship, makes  a  verbal  promise  to  pay  the  debt,  or  perform 
the  obligation  of  his  friend  or  neighbor,  is  not  legally 
bound  to  perform  his  promise.  A  moralist,  who  looks  at 
the  mere  matter  of  right  and  wrong  in  an  abstract  view, 
or  who  may  regard  only  some  individual  case,  may  con- 
sider this  as  unwise,  or  as  evidence  of  a  defect  in  the 
science,  or  in  the  administration,  of  law.  The  provision 
which  requires  such  promise  to  be  in  writing  to  render  it 
legally  efiectual  and  availing,  has  a  substantial  foundation 
in  the  wisdom  and  experience  of  ages,  and  cannot  be 
regarded  as  a  reproach  to  the  science  of  jurisprudence. 
Individuals  may  use  terms  broader  than  they  intend, 
when  speaking  of  their  willingness  to  aid  another  having 
no  inducement  or  purpose  of  their  own,  other  than 
friendship,  to  accomplish.  The  terms  used  may  be  under- 
stood by  those  to  whom  they  may  be  addressed,  or  by 
those  who  ma}^  hear  them,  in  a  sense  broader  than  was 
intended  or  designed  by  the  party  using  them.  Many 
circumstances,  derived  from  the  experience  of  business 
men,  might  be  adduced  to  show  that  the  safety  of  indi- 
viduals and  of  the  community  as  a  whole,  is  promoted 
by  requiring  such  contracts  to  be  evidenced  by  a  written 
memorandum ;  in  this  way  fraud  and  mistake  are  pre- 
vented. Other  contracts  of  a  similar  character,  and  from 
similar  principles,  are  required  to  be  in  writing ;  but  a 
large  proportion  of  all  contracts  may  be  established  by 
any  satisfactory  proof  which  the  parties  can  adduce, 
resorting  in  all  cases  to  the  best  or  most  natural  proof  of 
which  the  subject  may  be  susceptible.  Contracts  in  rela- 
tion to  land,  as  a  general  proposition,  must  be  in  writing. 
A  party  who  is  competent  to  make  a  contract  by  his  own 
will,  or  at  pleasure,  may  make  it  through  the  instrumen- 
tality of  his  agent,  servant,  or  attorney.    Contracts  should 


THE     SCIENCE     OF     GOVERNMENT.  185 

have  a  consideration,  either  good  or  vakiable,  as  a  mere 
gratuity  or  vokmtarj  undertaking  is  not  ordinarily  the 
subject  of  legal  enforcement ;  the  consideration  must  be 
legal,  otherwise  it  is  unavailing  as  the  foundation  of  a 
contract.  Contracts,  legal  by  the  law  of  the  country  in 
which  made,  are  regarded  as  legal  and  obligatory  in 
every  other  country.  To  this  rule  there  are  exceptions. 
Contracts  perfectly  legal  in  the  state  or  country  in  which 
made,  will  not  be  enforced  in  another  state,  where  such 
enforcement  must  or  may  be  inconsistent  or  incompatible 
with  the  institutions  of  the  country  in  which  they  are 
sought  to  be  set  up.  This  arises  from  the  necessity  of 
self-preservation  and  self-respect  which  is  imposed  upon 
every  community.  Some  contracts  are  regulated  by  law 
for  the  purpose  of  protecting  parties  thereto  from  their 
own  weakness,  or  from  the  pressure  of  their  condition ; 
laws  upon  the  subject  of  usury  are  of  this  description. 
Money  is  the  standard  by  which,  in  a  commercial  or 
advanced  state  of  society,  all  other  articles  are  measured 
and  their  value  determined.  The  business  of  society 
cannot  well  be  conducted  without  its  possession  and  use ; 
consequently  men  may  be  induced,  through  many  con- 
trolling influences,  to  pay  or  stipulate  to  pay  for  the  loan 
of  money  more  than  they  can  afford  to  pay,  with  profit 
to  themselves.  To  guard  against  such  improvident  con- 
duct, the  law-maker  intervenes  and  avoids  the  contract, 
or  imposes  penalties  upon  those  who  stipulate  to  receive 
more  than  the  legal  use  or  rate  prescribed  by  law.  Many 
writers  and  many  individuals  have  regarded  the  policy 
of  such  legislation  as  unsound,  and  as  an  unnecessary 
interference  with  private  contracts ;  that  money  is  merely 
an  article  of  trade,  and  is  worth  precisely  so  much  as  can 
be  obtained  in  promise,  or  other  property  therefor.  If 
the  propriety  of  usury  laws  is  to  be  determined  by  the 
course  of  legislation  which  has  been  had  upon  the  subject 

24 


186  THE     SCIENCE     OF     GOVERNMENT. 

in  various  countries,  they  must  be  regarded  as  wholesome 
and  beneficial  in  their  influence.  These  statutes  in  the 
several  states  are  not  the  same ;  in  some  it  has  been  the 
policy  of  the  law  to  avoid  entirely  the  force  and  effect  of 
a  contract  which  is  usurious ;  in  others,  to  impose  a  pen- 
alty in  the  way  of  deduction  from  the  sum  loaned.  The 
last  course  has,  within  a  few  years  j^ast,  become  the  most 
usual  method  adopted.  All  these  matters  are  the  subject 
of  state  sovereignty,  with  which  the  federal  government 
has  no  concern. 

The  regulation  of  internal  trade  is  a  matter  of  public 
concernment,  and  is  regulated  by  state  authoritj'.  This 
power  is  not  and  cannot  rightfully  be  exercised  so  as  to 
prohibit  the  citizen  from  engaging  in  any  wholesome 
business  or  occupation  which  may  be  congenial  to  his 
inclination,  or  conducive,  in  his  own  judgment,  to  his  in- 
dividual advancement  and  welfare.  The  public  interfere 
only  for  the  protection  of  the  public,  and  only  so  far  as 
the  safety  and  interests  of  the  body  politic  may  require. 
Auctioneers  and  brokers  are  required  to  conform  to  cer- 
tain rules,  and  to  have  a  license  ;  pawnbrokers  and  many 
other  occupations  are  obliged  to  submit  to  certain  restric- 
tions, designed  to  maintain  their  integrity  and  the  rights 
of  the  community.  The  care  and  disposition  of  many 
kinds  of  property,  which  are  dangerous  in  themselves  or 
susceptible  of  evil,  is  intrusted  to  the  legislative  depart- 
ment of  every  government,  and  when  exercised  within 
constitutional  and  judicious  limits,  such  care  and  disjDOsi- 
tion  are  productive  of  individual  and  of  public  good. 
This  power  intrenches  itself  closely  upon  individual 
right,  and  must  produce  evil  and  disquiet  in  a  com- 
munity when  improperly  extended.  In  relation  to 
legislation  of  this  description,  the  American  people  are 
sensitive,  and  do  not  submit  without  impatience,  except 
in  those  cases  where  public  opinion  is  very  decisive  and 


THE     SCIENCE     OF     GOVERNMENT.  187 

somewhat  uniform  upon  its  fitness.  In  a  free  country, 
law  must  coincide  with  and  follow  the  habits  of  the  peo- 
ple, or  it  will  produce  an  uneasy  and  restless  state  of 
mind,  from  which  no  good  can  come.  Law,  in  a  free 
country,  judiciously  established,  can  and  will  quietly 
mould,  chasten,  and  regulate  the  habits  of  the  people. 
It  cannot  create  virtue  or  intelligence. 

The  preservation  of  the  public  health  is  intrusted  to 
the  several  states.  Boards  of  health  are  established  by 
law  in  the  several  towns,  which  are  authorized  to  adopt, 
within  prescribed  limits,  rules  and  regulations  for  the 
preservation  of  health.  These  boards  exercise  an  im- 
portant influence  upon  the  moral  and  physical  condition 
of  the  people.  The  proceedings  and  measures  of  these 
boards  are  of  a  quiet,  unobtrusive  character ;  [are  of  con- 
stant and  daily  operation,  insomuch  that  the  result  pro- 
duced is  apparently  derived  from  the  habits  and  inclina- 
tion of  the  people,  and  not  from  the  force  of  legal  enact- 
ments. A  stranger  to  our  institutions,  taking  only  a 
general  survey  of  the  people  as  they  may  be  seen  in 
their  ordinary  pursuits,  each  following  his  own  inclina- 
tion in  the  selection  of  his  occupation,  would  incline  to 
suppose  that  the  community  is  governed  by  its  own  will, 
without  coercion  or  restraint  imposed  by  law.  This,  to  a 
great  extent,  is  undoubtedly  true,  and  must  be  so  in  a 
government  established  and  substantially  controlled  by 
the  popular  will.  Inspection  laws  are  of  the  same  char 
racter,  and  are  matters  of  state  legislation.  Many  of  the 
articles  which  are  of  ordinary  and  daily  consumption,  be- 
fore offered  for  sale,  must  be  examined  by  a  public 
officer,  and  their  character  and  quality  designated.  In 
this  respect,  the  public  are  protected  against  their  inca- 
pacity, their  carelessness  or  want  of  attention,  and  against 
fraud  and  imposition,  which  otherwise  might  be  practised 
against  them.     Quarantine  laws  are  established,  which 


188  THE    SCIENCE     OF     GOVERNMENT. 

apply  to  the  citizens  of  the  state  in  which  they  are  en- 
acted, and  also  to  the  peoi)le  and  to  vessels  belonging  to 
other  states  and  to  foreign  nations,  which  may  come 
within  the  limits  or  jurisdiction  of  state  authority.  High- 
ways and  bridges  are  established  l)y  towns  and  by 
counties,  for  public  convenience  and  at  public  charge ; 
they  are  also  established  by  and  imder  authority 
granted  by  the  state,  by  individuals,  and  by  corpora- 
tions, in  which  cases  the  proprietors  are  bound  to  keep 
them  open  and  in  repair,  accessible  to  the  people.  As 
a  compensation,  the  proprietors  are  authorized  to  assess 
or  charge  u\)on  those  who  use  them  a  toll  or  tax,  which 
is  regulated  by  public  authority.  Another  important 
and  extensive  power,  exercised  under  and  by  state  sove- 
reignty, is  that  of  its  internal  jiolice,  which  embraces  the 
settlement  and  support  of  paupers,  the  regulation  of 
licensed  houses,  the  care  of  lunatics,  the  observance  of 
the  Lord's  day,  the  prosecution  and  punishment  of  im- 
morality, the  law  of  the  road,  the  preservation  of  useful 
animals. 

The  effect  of  this  power  is  constant.  It  operates  upon 
the  most  important  interests  of  society,  and  its  several 
relations.  The  provision  made  for  the  support  of  paupers, 
in  many  of  the  states  of  the  union,  is  extensive,  and  has 
been  and  is  the  cause  of  large  expenditures  of  the  pub- 
lic money.  The  humanity  of  the  people  in  this  particu- 
lar, is  exhibited  in  a  favorable  aspect.  The  benefits  of 
the  system  have  been  extended  to  all  persons  who  may 
require  assistance,  without  reference  to  their  origin  or 
citizenship  ;  and  they  have,  no  doubt,  in  many  instances, 
fallen  upon  those  not  entitled.  The  propriety  of  our  sys- 
tem, in  relation  to  paupers,  has  been  the  subject  of  dis- 
cussion by  writers  upon  political  economy,  without  pro- 
ducing any  certain  and  reliable  judgment  as  to  its  fitness, 
compared  with  other  modes  of  relief     It  is,  in  fact,  one 


THE     SCIENCE     OF     GOVERNMENT.  189 

of  the  most  embarrassing  and  difficult  subjects  which  can 
engage  the  attention  of  the  law-maker,  or  the  thoughts 
of  the  humane  and  benevolent.  If  any  error  has  been 
made  by  the  American  people,  it  has  been  on  the  side  of 
liberality.  That  some  provision  must  be  made  upon  this 
subject  by  the  public,  cannot  with  propriety  be  denied. 
It  is  due  to  the  public  safety  and  preservation,  to  the 
peace  and  quiet  of  the  community  no  less  than  to  those 
sentiments  of  kindness  and  sympathy  which  should  ever 
be  extended  to  those  whose  misfortunes  are  above  and 
beyond  their  control.  The  powers  to  which  reference 
has  been  made,  health,  inspection,  and  police  regulations, 
have  always  been  conceded  to  state  authority,  even  by 
those  disposed  to  yield  to  the  federal  government  the 
most  enlarged  power  which  it  can  exercise  under  its  con- 
stitution. The  language  of  the  supreme  court  of  the 
United  States  has  been  clear,  uniform,  and  decisive.  A 
state  has  the  same  undeniable  and  unlimited  jurisdiction 
over  all  persons  and  things  within  its  territorial  limits  as 
any  foreign  nation,  when  that  jurisdiction  is  not  surren- 
dered or  restrained  by  the  constitution  of  the  United 
States.  It  is  not  only  the  right,  but  the  bounden  duty 
of  a  state  to  advance  the  safety,  happiness,  and  pros- 
perity of  its  people,  and  to  provide  for  its  general  wel- 
fare, by  any  and  every  act  of  legislation  which  it  may 
deem  to  be  conducive  to  these  ends,  in  all  cases  where 
the  power  over  the  particular  subject  or  the  manner  of 
its  exercise  are  not  surrendered  or  restrained  by  the  con- 
stitution of  the  United  States.  All  those  powers  which 
relate  to  merely  municipal  legislation,  or  wdiich  may 
more  properly  be  called  internal  police,  are  not  surren- 
dered or  restrained ;  and  consequently,  in  relation  to 
these,  the  authority  of  a  state  is  complete,  unqualified, 
and  exclusive.  In  some  instances  it  may  be,  and  un- 
doubtedly is,  difficult  to  define  with  certainty  and  perfect 


190  TUE     SCIENCE     OF     GOVERNMENT. 

accuracy  the  point  at  which  one  jurisdiction  commences 
and  tlie  other  ends.  This  can,  however,  be  done  with 
suflicient  precision  and  accuracy  to  prevent  collision, 
so  long  as  the  diflerent  sovereignties  manifest  a  spirit  of 
moderation,  and  a  determination  not  to  exercise  or  en- 
large any  supposed  douljtful  power. 

The  supreme  court  of  the  United  States,  on  one  occa- 
sion, in  speaking  of  the  police  power  of  a  state,  said :  If 
the  court  were  to  attempt  a  definition  of  it,  they  would 
say  that  every  law  came  within  the  description  of  a  reg- 
ulation of  police  which  concerned  the  welfare  of  the 
whole  people  of  a  state,  or  any  individual  within  it, 
whether  it  related  to  their  rights  or  their  duties ;  whether 
it  respected  them  as  men  or  as  citizens  of  the  state,  in 
their  public  or  private  relations;  whether  it  related  to 
the  rights  of  persons,  or  of  property  of  the  whole  people 
of  a  state,  or  of  any  individual  within  it,  and  whose  ope- 
ration was  within  the  territorial  limits  of  the  state,  and 
upon  the  persons  and  things  within  its  jurisdiction.  This 
definition  is  undoubtedly  sufficient  as  a  practical  guide, 
in  the  determination  of  any  question  which  may  arise. 
Definitions,  however,  in  general  terms  are  unsafe,  and 
liable  to  mislead,  whenever  their  application  to  an  indi- 
vidual case,  or  particular  state  of  facts,  is  attempted.  So 
far  as  I  have  been  able  to  analjze  the  question,  it  seems 
that  the  state  sovereignty  extends  to  all  things,  to  all  per- 
sons, all  contracts  within  its  territorial  limits  which  do 
not  appertain  to  the  foreign  relations  of  the  United 
States,  or  to  the  relation  which  subsists  between  the  seve- 
ral states  as  independent  sovereignties,  or  to  the  private 
rights  which  the  constitution  of  the  United  States  con- 
cedes to  the  citizens  of  a  state,  to  be  enjoyed  by  them  in 
another,  in  the  exercise  of  which  sovereignty  the  obliga- 
tion of  a  contract  shall  not  be  invaded  or  impaired. 


LECTURE    VII. 


THE  STATE  GOVERNMENT.  — THE  PURPOSE  AND  CHARACTER  OF  ITS  LEGISLATION.— 
WITHIN  CERTAIN  LDIITS  IT  IS  SUPREME,  AND  EXCLUSIVE  OF  FEDERAL  CONTROL 
—  RESTRICTIONS  IMPOSED  THEREUPON. 


Several  of  the  subjects  embraced  within  state  sove- 
reignty, which  are  controlled  by  its  legislation,  have  been 
discussed.  Some  of  the  most  important  remain  to  be 
examined  in  general  terms,  sufficiently  definite,  however, 
to  exhibit  their  character,  purpose,  and  practical  opera- 
tion. The  authority  or  power  to  establish  corporations, 
for  municipal  and  for  business  purposes,  appertains  to  the 
state  sovereignty,  so  far  as  it  may  be  exercised  for  internal 
matters,  and  it  has  been  exercised  in  the  several  states 
with  great  liberality,  and  with  more  frequency  than  the 
public  interests  have  required.  In  many  of  the  states, 
the  sovereign  power  is  exercised  by  the  creation  of  muni- 
cipal corporations,  through  the  instrumentality  of  which 
some  of  the  purposes  of  government  are  executed ;  coun- 
ties, towns,  and  cities,  belong  to  this  class  of  corporations, 
and  exercise  such  authority  as  the  legislative  department 
of  the  state,  from  time  to  time,  may  confer.  The  purpose 
to  be  accomplished  by  them  is  of  a  public  nature,  and 
their  doings  are  upheld  and  sustained,  whenever  they 
may  be  without  violating  some  fundamental  principle,  or 
provision  of  the  constitution  or  some  statute  applicable 


102  THE     SCIENCE     OF     GOVERNMENT. 

to  them.  Ever}'  intendmeut  in  favor  of  these  corpora- 
tions and  of  the  acts  of  their  corporate  oflicers  is  made, 
M'hich  with  propriety  can  be,  npon  the  broad  principle, 
apphcable  to  our  system  and  to  every  portion  of  it,  that 
the  government  and  the  trust  confided  thereto,  must  be 
sustained.  Tiiese  corporations  are  subject  to  the  control 
of  the  judiciarj',  and  they  may  be  restrained,  and  their 
officers  may  be  enjoined  from  going  beyond  their  power 
or  rightful  jurisdiction.  They  may  also  be  required  to 
perform  the  trusts  and  duties  with  which  they  are  or  may 
be  intrusted. 

The  officers  of  counties,  towns,  and  cities,  are  generally 
elected  by  the  people,  and  their  appropriate  duties,  in 
general  terms,  are  prescribed  by  law^,  so  that  their  discre- 
tion is  somewhat  controlled.  This  subdivision  of  autho- 
rity is  convenient,  and  well  adapted  to  the  speedy  and 
careful  management  and  protection  of  the  public  inter- 
ests. In  a  political  view,  and  as  a  branch  of  our  politi- 
cal economy,  it  is  of  the  utmost  impoi'tance.  The  divi- 
sion of  power,  the  establishment  of  institutions,  by  and 
through  which  all  the  purposes  of  government  are  ac- 
complished, constitutes  a  prominent  feature  in  the  several 
state  governments,  and  may  be  regarded  as  one  of  the 
safeguards  of  the  peojile,  and  of  their  rights.  The  pub- 
lic business  which  concerns  and  appertains  to  the  daily 
pursuits  of  the  community,  is  performed  by  these  muni- 
cipal corporations,  so  that  the  administration  of  the  powers 
of  government  in  these  matters,  is  conducted  and  exercised 
by  those  whose  immediate  interests  are  operated  upon. 
Every  citizen,  by  his  right  of  suffrage,  by  his  personal 
opinion  and  influence,  and  by  his  eligibility  to  office, 
holds  his  personal  security,  to  a  great  extent,  in  his  own 
hands ;  and  if  this  is  invaded,  such  invasion  must  result 
from  his  neglect  of  and  inattention  to  his  duty.  As  a 
general  fact  or  position,  it  may  be  said,  these  corpora- 


THE    SCIENCE     OF     GOVERNMENT.  193 

tioiis  confine  their  action  within  their  corporate  limits  or 
power,  although  instances  have  occurred,  in  which  they 
have  transcended  their  appropriate  sphere.  Towns  or 
municipalities  under  a  city  organization  are  more  likely 
to  exceed  their  jurisdiction,  than  are  those  which  act 
"under  a  different  system.  City  officers,  from  habit,  from 
association,  and  from  the  nature  of  their  powers,  are  re- 
garded as  of  more  importance  and  dignity  than  are  plain 
common  citizens,  acting  under  the  name  of  selectmen. 
The  power  of  a  city  government,  is  undoulotedly  more 
direct  and  efficient  than  is  that  of  a  town,  which  has  no 
such  organization.  The  chief  executive  officer  of  a  city 
devotes  a  large  proportion  of  every  da}'^  to  the  duties  of 
his  station,  and  is  more  directly  the  object  of  observation 
and  responsibility  than  is  a  selectman  of  a  town.  Many 
other  officers  devote  a  large  proportion  of  their  tim6  to 
the  public  duties.  The  population  of  cities  is  usually 
greater  than  is  that  of  a  town.  In  the  commonwealth  of 
Massachusetts,  it  was  formerly  doubted  whether  the  legis- 
lative department  had  power  to  establish  city  govern- 
ments. To  obviate  this  supposed  difficulty,  the  constitu- 
tion was  amended,  and  the  general  court  is  now  author- 
ized to  establish  city  governments  in  any  town  which 
has  at  least  twelve  thousand  inhabitants,  provided  the 
application  for  a  charter,  and  its  acceptance,  shall  be 
made  by  a  majority  of  the  inhabitants  voting  upon 
the  question.  The  powers,  privileges,  and  immunities 
granted,  if  not  repugnant  to  the  constitution,  are  such 
as  the  legislative  department  of  the  state  may  consider 
expedient,  provided  that  all  by-laws  made  by  any  city 
government  shall  be  subject,  at  all  times,  to  be  annulled 
by  the  general  court.  This  division  of  authority,  as  an 
element  of  political  economy,  is  not  without  influence  in 
another  important  aspect.  It  creates  a  large  number  of 
offices,  all  of  which,  although  they  are  not  equally  fasci- 

25 


194  THE     SCIENCE     OF     UUVEllNMENT. 

nating  or  desirable,  or  of  equal  pecuniary  value,  are 
readily  and  easily  filled.  The  love  of  place,  of  power,  is 
natural  to  the  human  mind ;  it  is  as  great  under  a  repub- 
lican form  of  government  as  it  is  in  any  other.  Arbi- 
trary power,  or  its  unauthorized  assum])tion,  is  more  easi- 
ly resisted  and  controlled  in  a  rejiublican  form  of  govern- 
ment, than  it  can  be  in  a  government  whose  source  of 
power  is  not  immediately  derived  from  the  people.  So 
far  as  power  can  be  safely  divided,  its  authority  diffused, 
and  its  execution  intrusted  to  a  large  number  of  indivi- 
duals, it  should  be,  inasmuch  as  thereby  the  entire  peo- 
ple apparently  constitute  the  government,  as  they  do  in 
fact,  except  so  far  as  they  have  limited  and  controlled 
their  right  and  capacity  by  constitutions,  by  charters,  or 
by  statutes.  By  this  diffusion  of  authority,  the  distance 
and  difference  which  otherwise  might 'seem  to  exist  be- 
tween those,  who  from  time  to  time  control  the  machinery 
of  government,  and  those  governed,  is  trifling  and  unim- 
portant. The  capacity  of  towns,  of  cities,  of  counties,  or 
other  territorial  divisions,  as  parts  of  a  state  sovereignty 
or  government,  to  perform  their  duties,  is  understood 
and  admitted  at  once,  upon  its  suggestion  or  statement. 
No  cause  of  conflict  between  them  and  the  state  sove- 
reignty can  arise,  because  all  these  divisions  have  limited, 
subordinate,  and  prescribed  trusts,  and  are  subject,  in  their 
exercise  and  performance,  to  the  direction  of  the  state, 
carried  into  effect  by  its  legislative,  judicial,  and  execu- 
tive departments.  The  corporations  to  which  I  have  re- 
ferred are  of  a  public  nature,  and  exclusively  for  public 
purposes.  They  have  no  power  to  embark  in  enterprises 
or  business  operations  of  a  private  character,  however 
profitable  or  plausible  they  may  seem  to  be,  which  are 
not  essential  to  the  existence  or  exercise  of  the  legiti- 
mate purposes  of  government.  Under  state  sovereignty, 
a  large  number  of  other  corporations  of  a  private  nature, 


THE     SCIENCE     OF     GOVERNMENT.  195 

for  the  profit  and  advantage  of  individuals,  have  been  and 
may  be  established.  They  are  designed  to  facilitate,  to 
aid  individual  enterprise,  and  thereby  subserve  the  gen- 
eral welfare  and  interests  of  society.  The  progress  of 
society,  of  its  institutions,  the  employment  of  capital,  of 
labor,  are  advanced  and  carried  forward  by  these  corpora- 
tions. The  wealth  and  importance  of  the  community,  as 
a  whole,  is  undoubtedly  enlarged  by  their  operation. 
They  are,  however,  dangerous  implements,  inasmuch  as 
individual  responsibility  is  frequently  merged  and  lost  in 
that  of  an  intangible  corporate  existence. 

In  the  early  legislation  of  free  states,  especially  of 
those  which  are  new  and  unimproved,  acts  of  incorpora- 
tion are  easily  obtained.  Efforts  for  individual  gain  are 
always  importunate,  and,  when  accompanied  by  glowing 
exhibitions  of  public  advancement,  generally  succeed  in 
obtaining  the  desired  implements,  by  which  it  is  sought 
to  be  attained.  This  is  evident  from  the  legislation  of  the 
several  states,  in  relation  to  corporations  created  for  pri- 
vate purposes.  Restrictions,  from  time  to  time,  are  im- 
posed upon  their  action.  Their  charters  may  be  taken 
away  by  the  judiciary,  and  may  be  declared  void  upon  a 
hearing,  and  satisfactory  proof  of  any  clear  and  material 
violation  of  their  chartered  rights  or  duties.  In  many  in- 
stances, by  express  provision  in  the  charters  granted,  the 
legislative  department  reserves  to  itself  a  right  of  repeal 
or  rescission  of  the  grant.  In  many  of  the  states,  it  has 
recently  become  common  to  provide  by  general  statutes, 
that  corporations  thereafter  established,  shall  be  subject 
to  revision,  alteration,  amendment,  or  repeal,  at  the  plea- 
sure of  the  department  which  created  them.  They  are 
also  made  subject  to  examination  by  public  agents  or 
officers;  are  obliged  to  report  to  the  public  authority 
their  condition  and  doings,  and,  under  certain  circum- 
stances, the  stockholders  or  corporators  are  made  person- 


]9G  THK     SCIENCE     OF     GOVERNMENT. 

ally  responsible  for  the  obligations  and  acts  of  the  corpo- 
rations of  which  tliey  are  members.  As  these  associa- 
tions increase  in  number,  as  the  facility  of  obtaining 
chartered  rights  is  enlarged,  the  care  of  the  law-maker, 
to  prevent  wrong  and  inj^uy  to  the  community,  is  in- 
creased. Notwithstanding  all  the  restrictions  which  have 
been,  or  can  be,  imposed,  it  cannot  be  doubted  or  denied, 
that  corporations  are  altogether  too  numerous.  Many  of 
the  most  common  and  ordinary  business  operations  are 
carried  on  by  the  instrumentality  of  a  charter  or  act  of 
incorporation.  The  argument  put  forth  generall}^  in 
favor  of  an  extension  of  the  number  of  incorporations  is, 
that  they  constitute  monopolies ;  that  their  extension 
has  a  tendency  to  prevent  the  inconveniences  ordinarily 
resulting  from  a  monopoly,  inasmuch  as  twenty  or  fifty 
monopolies  will  embrace  more  individuals  than  can  be 
included  in  a  less  number.  It  is  also  urged,  that  any  per- 
son, or  number  of  persons,  has  and  have  the  same  right 
to  obtain  the  privileges  and  immunities  of  a  charter  as 
any  other  person  or  number  of  persons  may  have.  This 
course  of  reasoning  is  specious,  and  has  much  of  truth  and 
soundness  in  its  composition,  but  does  not  contain  all  the 
elements  or  principles  applicable  to  the  subject.  Al- 
though corporations  are  for  the  personal  benefit  and 
emolument  of  the  corporators,  individual  benefit  is  not 
the  sole  motive  or  cause  of  their  creation.  The  theory 
of  the  government  is,  that  thereby  tire  public  interest  and 
welfare  may  be  extended  and  promoted  in  a  manner  in 
which  it  could  not  otherwise  be.  Corporations  ought 
not,  therefore,  to  be  established,  except  some  public 
good  may  probably  be  accomplished,  which  would  fail  in 
its  accomplishment,  if  left  to  individual  exertion.  The 
power  of  establishing  corporations  has  given  rise  to  a 
very  important  and  interesting  discussion,  in  relation  to 
the  right  of  government  to  divest  itself  of  its  sovereignty. 


THE     SCIENCE     OF     GOVERNMENT.  197 

The  government  may  grant  any  property  of  which  it  may 
hold  the  title,  and  having  made  the  grant,  cannot  resume 
it  of  its  own  sovereign  will,  except  under  its  power  to 
take  private  property  for  the  public  use,  by  making  com- 
pensation therefor.  It  may  grant  a  franchise  such  as  the 
right  to  take  toll  upon  a  bridge,  ferry,  or  pike  road,  and 
by  payment  therefor  may  resume  it  for  the  public  exi- 
gency. Other  grants  or  privileges  conferred  by  the 
legislative  department  may  be  resumed ;  in  other  words, 
the  sovereign  power  cannot  be  exercised  to  its  own  de- 
struction or  to  the  diminution  of  its  sovereignty,  so  as 
thereby  to  destroy  or  impede  the  execution  of  those 
public  trusts  for  which  government  is  established.  Offices 
may  be  established  for  public  purposes,  to  continue  for  a 
definite  period  of  time  ;  notwithstanding  which  limitation, 
they  may  be  abolished  before  the  lapse  or  expiration  of 
such  period,  without  legal  cause  of  complaint,  and  with- 
out compensation  for  any  supposed  individual  wrong  or 
inconvenience  which  may  occur.  In  all  cases  of  grants 
by  which  the  right  of  eminent  domain,  the  power  of 
sovereignty  is  diminished  or  surrendered,  it  must  be 
clearly  and  distinctly  shown,  as  no  such  diminution  or 
surrender  of  sovereignty  will  be  assumed  or  sustained  by 
implication.  The  corporations  of  a  private  character  to 
which  I  have  referred,  are  familiar  to  you ;  the  most  pro- 
minent and  useful  are  banks,'  insurance  companies,  manu- 
facturing companies,  railway  charters,  aqueduct,  library, 
and  agricultural  associations.  All  these  exercise  an  im- 
portant bearing  upon  the  relations  and  occupations  of 
the  community ;  they  are  of  state  creation,  and  subject 
exclusively  to  its  management  and  control,  without  the 
intervention  or  interference  of  the  federal  government. 

The  principal  rights,  duties,  and  remedies,  which  apper- 
tain to,  or  result  from,  the  relation  which  subsists  between 
debtor  and  creditor,  are  matters  of  state  sovereignty,  and 


198  Tin:     SCIENCE     OF     (JOVEUN.MKNT. 

are  regulated  by  its  jurisdiction.  The  legislation  of  the 
several  states  upon  this  subject  has  generally  been  so 
designed  as  to  uphold  private  right ;  to  encourage  the 
security  and  integrity  of  individual  credit.  The  early 
history  of  the  New  England  states,  as  illustrated  by  its 
legislation  upon  this  subject,  evinces  a  more  decisive  and 
determined  ellbrt  on  the  part  of  the  law-making  power 
to  secure  and  enforce  the  payment  of  debts  and  the  per- 
formance of  obligations,  than  is  exhibited  at  the  present 
time.  In  every  state  the  property  of  a  debtor  is  liable 
to  be  seized  by  legal  process,  and  ultimately  applied  to 
the  payment  of  his  indebtment.  This  liabilit}'  is  not 
equally  extensive  in  the  several  states.  The  exceptions 
and  exemptions  of  property  are  more  extensive  in  some, 
than  in  other  of  the  states.  Certain  articles  of  household 
goods,  wearing  apparel,  school  books,  implements  of  trade, 
equipments  for  military  duty,  and  other  articles  to  be 
selected  by  the  debtor,  not  exceeding  a  fixed  sum  in 
value,  ordinarily  varying  from  twenty  to  fifty  dollars,  as 
appraised  by  a  public  officer,  (the  sherift"  or  his  deputy,) 
whose  liberality,  with  rare  exception,  is  equal  to  that  of 
the  law  under  which  he  acts,  are  exempted  in  the  several 
states,  and  excluded  from  the  reach  of  the  creditor.  The 
legislation  upon  this  subject  develops  certain  principles ; 
a  desire  to  preserve  private  faith,  to  secure  the  perform- 
ance of  private  obligation  for  the  benefit  of  the  creditor, 
and  at  the  same  time  to  enable  the  debtor  to  preserve 
the  means  of  education  and  instruction  for  himself  and 
family,  and  to  retain  the  implements  which  are  essential 
to  the  jDcrformance  of  those  duties  which  the  public 
require,  and  more  than  and  beyond  this,  his  fireside  can- 
not be  divested  of  articles,  although  they  may  be  few  and 
coarse,  which  are  of  daily  use  to  the  family  household. 
In  some  of  the  states  property  cannot  be  arrested  by  a 
creditor,  until  after  his  title  or  right  as  a  creditor  shall 


THE     SCIENCE     OF     GOVERNMENT.  199 

have  been  judicially  ascertained.  In  other  of  the  states 
any  person  who  supposes  himself  to  be  a  creditor  of 
another  may,  upon  his  own  motion,  cause  the  property  of 
his  assumed  or  supposed  debtor  to  be  seized  and  retained 
until  the  question  of  right  shall  be  determined.  A  debtor, 
in  many  of  the  states,  may  be  personally  arrested  by  a 
creditor,  and  in  some  of  the  states  by  an  assumed  credi- 
tor, and  be  thereupon  imprisoned  for  a  certain  period  of 
time,  and  until  released  by  an  examination  showing  that 
he  has  no  property,  except  such  as  is  protected  to  him  by 
law.  New  states,  those  of  recent  settlement,  are  gene- 
rally far  more  liberal  in  their  enactments  to  the  debtor, 
than  are  those  which,  by  a  series  of  years,  have  acquired 
stability,  have  increased  in  population,  wealth,  and  enter- 
prise. This  is  natural  and  justifiable,  to  a  certain  reason- 
able extent.  In  all  of  the  several  states  an  enlarged 
liberality  has  always  been  extended  to  the  honest  and  un- 
fortunate debtor,  and  always  should  be.  This  is  in  har- 
mony with  public  opinion,  is  in  harmony  with  the  senti- 
ments of  a  very  large  proportion  of  those  who  are 
creditors.  It  cannot,  however,  be  denied,  that  legislation 
upon  this  subject  has  frequently  been  extended  in  favor 
of  the  debtor  to  limits  unreasonable,  and  alike  injurious 
to  debtor  and  creditor.  In  this,  as  in  all  other  matters  of 
social  organization  and  arrangement,  the  moderate  and 
reasonable  rights  and  duties  of  all  are  to  be  regarded ; 
and  especially  important  it  is,  that  private  and  public 
faith  and  obligation  should  not  be  impaired,  hindered,  or 
endangered  by  legislation.  It  is  a  matter  of  j^ublic  con- 
cernment, that  there  should  be  an  end  of  litigation ;  to 
accomplish  this,  statutes  of  limitation,  of  repose  are  pre- 
scribed by  state  legislation,  the  result  of  which  is,  that  a 
party  who  neglects  to  assert  his  rights  or  title  for  a  pre- 
scribed period  of  time,  having  an  opportunity  to  assert 
them,  is  or  may  be  forever  barred.    Formerly,  in  the  com- 


20U  THE     SCIENCE     OF     GOVERNMENT. 

monwealth  of  Massiicliusetts,  a  party  claiming  title  to 
land  might  assert  it  at  any  time  within  sixty  years  after 
the  creation  or  origin  of  the  title  upon  Avhich  he  relied ; 
now  this  jieriod  is  reduced,  and  limited  to  one  third  of 
that  period,  after  the  acquisition  of  the  title.  This  change 
has  l)een  o-radual,  and  cannot  be  reij-arded  as  adverse  or 
injurious  to  pul)lic  or  to  individual  right. 

Transactions  of  a  recent  date,  can  generallj'  be  the 
subject  of  proof  and  of  elucidation;  those  over  which 
years  have  passed  cannot  be,  as  some  of  the  actors  may 
have  passed  away,  or  may  be  beyond  reach ;  or  if  found, 
their  recollection  of  events,  of  facts,  may  be  feeble  or  in- 
accurate. The  law  extends  its  protection  to  the  vigilant, 
it  breaks  not  upon  the  slumbers  of  those  who  voluntarily 
sleep  upon  their  rights.  In  relation  to  matters  of  a  per- 
sonal nature  not  connected  with  land,  the  periods  of  limi- 
tation, ordinarily,  are  from  one  to  six  years,  varying  ac- 
cording to  the  character  of  the  debt,  or  right,  to  which 
they  may  be  applied.  In  several  of  the  states,  obliga- 
tions under  seal,  and  written  obligations  not  under  seal, 
which  are  attested  by  a  witness,  may  be  enforced  by  the 
part}'  at  any  time  within  twenty  years.  In  several  of 
the  new  states,  statutes  of  limitation  applicable  to  per- 
sonal obligations  are  more  favorable  to  the  creditor,  than 
they  are  in  the  states  of  earlier  origin.  The  policy  of 
this  legislation  is  conducive  to  the  extension  and  enlarge- 
ment of  credit,  which  is  an  element  of  prosperity  in 
every  state,  when  guarded  and  kept  within  proper  limits, 
and  in  new  states,  where  capital  cannot  be  abundant,  and 
must  be  sought  and  obtained  elsewhere,  it  constitutes  an 
active  and  important  means  of  advancement.  The  capa- 
city of  persons  to  contract,  is  also  a  subject  regulated  by 
state  authorit}-,  excluding  possibly,  in  some  instances, 
aliens ;  the  age  at  which  minority  and  its  disabilities  are 
determined,  and  the  child  released  from  parental  author- 


THE     SCIENCE     OF     GOVERNMENT.  201 

ity,  SO  far  as  such  authority  is  imposed  hj  law,  is  deter- 
mined and  fixed  by  the  legislative  department  of  each 
state  for  itself  The  several  states  are  also  clothed  with 
the  power  of  taxation  for  the  support  and  maintenance 
of  government,  for  the  education  of  the  people,  for  the 
construction  of  roads,  for  the  support  of  the  judiciary, 
and  for  all  the  trusts  confided  to  them.  These  taxes  are 
direct  upon  persons,  property,  occupation,  and  upon  in- 
come. They  are  assessed  by  the  state,  by  counties,  by 
towns  and  cities,  each  assessing  for  the  purposes  confided 
to  their  several  care  and  action.  Generally,  every  species 
of  property  is  liable  to  taxation,  although  in  some  of  the 
states  the  assessments,  or  a  large  proportion  of  them,  are 
assessed  upon  the  land  and  upon  buildings.  The  power 
of  taxation  is  limited,  and  is  exercised  by  those  upon 
whom  it  operates.  A  large  part  of  the  money  raised 
under  this  power,  is  for  the  municipal  and  local  purposes 
of  the  towns,  so  that  the  inhabitants,  to  a  great  extent, 
upon  whom  taxes  are  levied,  determine  the  amount  which 
shall  at  any  time  be  assessed,  and  in  various  ways  they 
participate  in  the  expenditure  of  the  money  raised.  The 
government  is  clothed  with  very  efficient  and  speedy 
means  of  compelling  payment,  and  frequently  takes  a 
precedence  or  priority  over  individual  claimants,  upon 
the  ground  that  the  public  interests  are  more  important 
and  essential  than  any  mere  individual  right.  And  under 
some  circumstances,  the  citizen  who  neglects  to  pay  his 
tax,  is  deprived  of  the  right  of  suffrage.  This,  at  all 
times,  is  a  powerful  inducement  to  parties  to  pay,  and, 
at  some  periods  of  excitement,  is  a  most  successful  aid  to 
the  government  in  its  collections. 

The  militia,  in  some  of  its  features  and  incidents,  is  a 
matter  of  state  authority  and  regulation,  and  may  appro- 
priately be  regarded  as  a  state  institution,  notwithstand- 
ing the  qualified  authority  over  it,  with  which  the  federal 

26 


202  THE     SCIENCE     OF     GOVERNMENT. 

government  is  invested.  The  expense  of  this  estabhsh- 
ment  i.s  borne  in  part  bv  the  individuals  enrolled,  and  in 
part  !)>'  the  government.  The  militia  has  always  been 
regarded  by  a  great  majority  of  the  people,  with  pride 
and  commendation,  although  many  of  those  enrolled 
when  the  country  is  at  peace,  manage,  on  training  days, 
to  be  absent,  and  others  who  may  be  present,  act  merely 
as  spectators.  In  a  state  of  war,  every  class  of  the  com- 
munity readily  furnishes  its  quota  of  men,  without  refer- 
ence to  personal  or  party  considerations,  thus  exhibiting 
an  ever  present  and  active  regard  for  their  country  and 
its  institutions. 

Offences  are  matters  of  state  and  of  national  legisla- 
tion, each  sovereignty  providing  for  those  which  may  oc- 
cur against  its  jurisdiction,  constitution,  or  laws.  As  a 
general  position  or  principle  of  law,  it  may  be  said  that 
every  country,  every  government,  has  the  exclusive 
power  and  authority  to  say,  what  shall  constitute  an  of- 
fence against  itself,  how  it  shall  be  proved  and  how  pun- 
ished. No  government  undertakes  to  enforce  the  penal 
or  criminal  code,  or  statutes  of  another  jurisdiction. 
Under  our  system,  the  two  governments  exercise  juris- 
diction over  the  same  persons,  and  over  the  same  terri- 
tory, but  an  offence  against  one  sovereignty  is  not  an  of- 
fence against  the  other.  It  has,  however,  been  adjudged 
that  the  same  act  may  constitute  an  offence  against  the 
state  and  the  national  authority.  A  party  who  felonious- 
ly takes  from  the  post-office,  or  from  the  custody  of  a 
mail-carrier,  a  letter  which  contains  money,  may  be  in- 
dicted in  a  state  court,  for  larceny  committed  in  taking 
the  money  contained  in  the  letter,  and  at  the  same  time 
in  the  courts  of  the  United  States,  for  a  violation  of  the 
laws  of  the  United  States  regulating  the  post-office  de- 
partment, and  providing  for  the  security  of  letters  and 
papers  transmitted.     So  far  as  I  have  examined,  it  seems 


THE     SCIENCE     OF     GOVERNMENT.  zOo 

to  be  the  result  of  judicial  authority  that  this  may  be 
done.  In  practice,  however,  ordinarily,  after  the  institu- 
tion of  a  criminal  proceeding  in  one  court,  based  upon  a 
particular  act,  it  has  not  been  usual  to  institute  proceed- 
ings in  the  courts  of  another  jurisdiction  founded  iipon 
the  same  act.  In  one  case,  in  v\^hich  an  indictment  had 
been  found  against  a  party  in  a  state  court,  and  also  in  a 
court  of  the  United  States,  founded  upon  one  and  the 
same  act,  the  taking  of  a  letter  from  the  post-office  by  a 
post-master  with  intent  to  destroy  the  same,  and  of  con- 
verting to  his  own  use  a  bank  bill  which  it  contained,  the 
state  attorney-general  voluntarily  abandoned  the  proceed- 
ing which  he  had  instituted  in  the  state  court,  after  the 
party  accused  had  been  arrested  by  process  from  a  court 
of  the  United  States. 

Notwithstanding  the  course  of  judicial  proceeding  to 
which  reference  has  been  made,  from  which  it  is  inferred, 
that  the  same  act  may  constitute  two  offences,  neither  of 
which  is  merged  in  the  other,  because  the  act  constitutes 
an  offence  against  each  of  the  two  sovereignties ;  it 
would  be  disingenuous  in  me  not  to  say,  I  do  not  per- 
ceive the  fitness  or  necessity  of  creating  or  deducing 
from  one  and  the  same  act  two  offences.  A  letter  in  the 
post-office  is  in  the  custody  of  the  United  States  ;  this 
custody  is  exclusive  of  any  state  control ;  it  may,  there- 
fore, without  impropriety  or  inconsistency  be  said,  that  a 
letter  in  such  case,  although  it  contain  money  or  other 
article  of  value,  so  long  as  it  remains  in  such  custody,  is 
without  and  beyond  the  jurisdiction  of  a  state  and  of  its 
judiciary,  upon  the  same  principle  which  is  and  would 
be  applied  to  an  act  done  upon  territory  within  the  ex- 
clusive jurisdiction  of  the  United  States,  and  over  which 
the  jurisdiction  of  a  state  does  not  extend.  The  several 
state  constitutions  have  made  ample  provision  for  the 
protection  of  such  persons  as  may  be  accused.     Great 


204  THE    SCIENCE     OF     GOVERNxMENT. 

liumauitj  is  manifest  in  all  onr  legislation  upon  this  sub- 
ject. The  party  has  a  right  to  a  delinito  and  accurate  state- 
ment of  the  alleged  offence ;  a  right  to  )je  affronted  by  his 
accusers ;  to  have  such  %vitnesses  and  counsel  in  his  behalf 
as  he  may  produce ;  to  be  tried  by  a  jury  composed  of  his 
neighbors ;  and  every  reasonable  doubt  as  to  the  guilt  of  a 
party  accused,  which  may  arise  upon  the  proof  exhibited 
agamst  him,  is  available  to  his  advantage  and  discharge. 
In  some  cases,  the  party  accused  has  a  right  to  the  process 
and  power  of  the  government,  by  which,  at  the  public  cost, 
he  may  compel  the  attendance  of  his  witnesses,  and  by 
the  usage  of  the  court,  in  certain  cases,  is  supplied  with 
counsel  by  appointment  of  the  court,  if  he  does  not  elect 
or  has  no  ability  to  supply  his  legal  adviser  from  his  pri- 
vate resources.  The  legislation  of  the  several  states,  to 
which  reference  has  been  nuide,  and  of  which  I  have 
briefly  presented  some  of  the  most  prominent  subjects, 
exhibits  in  many  matters  great  similarity  and  unifoimity. 
There  are  certain  fundamental  principles  of  right,  of  law 
and  justice,  which  may  be  applied  to  every  state  in  the 
union,  uninfluenced  by  local  causes,  habits,  or  climate. 
In  other  particulars  this  similarity  does  not  exist,  and  can- 
not, inasmuch  as  the  laws  of  every  state  must  be  estab- 
lished in  conformity  with  the  habits,  associations,  and 
business  of  its  people,  which  arc  influenced  by  climate,  by 
origin,  and  by  many  other  causes.  This  diversity  of 
legislation  is  a  result  flowing  directly  from  the  existence 
of  diflerent  independent  sovereignties,  whereby  a  diffu- 
sion and  division  of  authority  is  created ;  which  difliision 
and  division  of  power  is  the  main  source  of  the  strength 
and  the  support  of  the  union. 

The  law  which  is  administered  in  the  several  states 
is  derived  from  several  sources.  First  and  paramount 
to  all  other  and  every  other  source,  is  its  constitution, 
against  which  no  other  law  or  official  act  can  avail.   Next 


THE     SCIENCE     OF     GOVERNMENT.  205 

in  force  and  effect  are  the  statutes  of  a  state  rightfully 
passed  in  conformity  with  its  constitution,  not  violating 
that  of  the  United  States.  In  addition  to  these,  and 
where  these  do  not  control,  resort  is  and  may  be  had  to 
the  common  law,  and  to  the  usages  of  trade  or  of  locality. 
The  constitutions  and  statutes  are  written ;  the  common 
law  and  usages  are  unwritten. 

The  common  law  may  be  designated  as  a  collection  or 
series  of  principles,  as  a  collection  or  series  of  intend- 
ments, deduced  from  the  observation  and  experience  of 
mankind,  as  applied  to  particular  facts  or  relations  of  life. 
An  individual  may  hold  two  offices,  or  may  have  two  dis- 
tinct powers  or  agencies  conferred  upon  him,  and  may  do 
an  act  which  under  one  of  the  offices  or  powers  he  may 
rightftdly  do,  without  designating  the  office  or  the  power 
under  which  he  assumes  to  act ;  in  such  case,  generally, 
the  common  law  will  intend  that  the  individual  meant  to 
act  under  the  office  or  power  which  authorized  the  act, 
so  as  thereby  to  render  an  act  available  which  otherwise 
might  not  operate  to  accomplish  the  purpose  designed. 
This  simple  illustration  is  sufficient  to  exhibit  the  basis 
upon  which  all  legal  intendments  are  made.  The  com- 
mon law  of  many  of  the  several  states  is  derived  from 
the  common  law  of  England,  and  such  common  law, 
where  it  is  applicable  and  not  inconsistent  with  our  sys- 
tem of  government,  our  institutions  or  statutes,  is  the 
law  daily  administered.  The  common  law  cannot  be  ap- 
plied in  opposition  to  our  written  constitutions  or  to  our 
laws,  or  the  policy  by  which  they  are  dictated. 

Usage  is  another  source  of  right  and  of  law,  the  nature 
and  character  of  which  is  familiar  to  you ;  the  principle 
upon  which  usage  is  applied  to  the  transactions  of  life,  to 
the  conduct  and  liabilities  of  persons,  is  in  harmony  with 
reason,  with  common  sense.  If  an  individual  of  one 
place  sends  merchandise  to  a  merchant  or  factor  resident 


20C  THi:     SCIEXCK     OF     GOVERNMENT. 

at  another  place  for  sale,  without  giving  any  instruction 
as  to  the  mode  of  sale,  the  consignee  may  sell  it  at  public 
sale,  through  the  agency  of  an  auctioneer,  upon  proof 
that  it  is  usual  and  customary,  at  the  place  at  which  the 
sale  is  to  be  made,  for  consignees  of  such  property  to 
make  sales  thereof  at  auction.  The  principle  of  this 
position  is  a  sound  one,  and  is  readiW  understood.  If  a 
person  at  a  particular  place  is  requested  to  do  an  act,  or 
perform  a  service,  in  the  absence  of  instruction  or  direc- 
tion to  the  contrary,  he  may  and  should  do  the  act,  or 
perform  the  service,  in  the  mode  in  which  such  acts  or 
services  are  usually  performed.  No  usage,  however, 
which  is  illegal,  or  in  violation  of  an  express  contract  or 
stipulation  of  the  parties,  can  be  successfully  set  up.  And 
he  who  in  any  case  relies  upon  usage,  must  show  its 
existence,  except  in  certain  cases  where  the  usage  has 
been  so  frequently  proved  in  court,  that  it  may  and  will 
be  regarded  as  known  to  the  court,  or  as  constituting  a 
part  of  the  law-merchant. 

The  general  outline  which  has  been  exhibited  in  this, 
and  in  the  preceding  lecture,  exhibits  the  character  and 
extent  of  state  legislation,  and  the  source  or  principles  of 
law,  from  and  by  which  it  is  carried  into  effect.  This 
legislation  surrounds  all  the  ordinary  transactions  of  the 
community ;  the  obligations  and  liabilities  resulting  from 
the  relations  of  life,  as  known  to  a  government  based 
upon  the  popular  will  of  those  subject  to  its  power.  This 
legislation  is  subject  to  certain  restrictions  and  prohibi- 
tions designed  to  distinguish  and  mark  the  boundary 
which  exists  between  the  national  and  state  jurisdiction, 
and  to  secure  to  the  citizens  of  the  several  states  certain 
immunities  or  exemptions  from  state  authority.  These 
restrictions  and  prohibitions  are  for  the  protection  of 
public  and  of  private  rights.  They  are  contained  in  the 
constitution  of  the  United  States,  which  instrument  pro- 


THE    SCIENCE     OF     GOVERNMENT.  207 

vides  that  congress  may  at  any  time  by  law,  make  regu- 
lations as  to  the  times,  places,  and  manner  of  holding 
elections  for  senators  and  representatives,  or  may  alter 
such  as  may  have  been  established  by  the  legislature  of 
any  state,  provided  that  congress  shall  not  interfere  as  to 
the  place  of  choosing  senators.  This  power  of  congress 
has  not  been,  so  far  as  I  know,  exercised,  and  probably 
no  occasion  for  its  exercise  will  ever  occur.  The  neces- 
sity of  the  power  conferred  upon  congress  in  this  matter 
is  apparent,  inasmuch  as  the  several  states,  if  no  such 
power  had  been  conferred  upon  congress,  by  neglect  to 
provide  for  the  election  of  representatives  and  senators 
to  the  congress  of  the  United  States,  might  embarrass 
and  endanger  the  interests  and  duties  of  the  federal  gov- 
ernment. No  state  shall  enter  into  any  treaty,  alliance, 
or  confederation,  —  grant  letters  of  marque  and  reprisal. 
No  state  shall,  without  the  consent  of  congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
laws ;  and  the  net  produce  of  all  duties  and  imposts  laid 
by  any  state  on  imports  or  exports,  shall  be  for  the  use  of 
the  treasury  of  the  United  States;  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  con- 
gress. No  state  shall,  without  the  consent  of  congress,  lay 
any  duty  of  tonnage,  keep  troops  or  ships  of  war  in 
time  of  peace,  enter  into  any  agreement  or  compact  with 
another  state  or  with  a  foreign  power,  or  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger  as 
will  not  admit  of  delay.  These  restrictions  upon  state 
legislation,  constitute  the  most  important  and  imposing 
element  of  the  federal  jurisdiction ;  they  may  be  regarded 
as  descriptive  of  the  boundary  of  the  several  sovereign- 
ties of  which  the  system  is  composed.  They  confer  upon 
the  federal  or  national  government  the  entire  control  of 
the  foreign  relations  of  the  country  as  a  whole.     The 


208  THE     SCIENCE     OF     GOVERNMENT. 

sagacity  which  led  to  the  union  and  to  the  government, 
based  upon  and  resulting  therefrom,  must  be  conceded 
from  every  consideration,  however  slight,  which  may  be 
given  to  the  subject.  It  would  be  difficult  for  thirteen, 
and  certainly  impracticable  for  thirty-one  or  more,  inde- 
pendent sovereignties,  embracing  a  continuous  territory, 
having  no  natural  walls  or  barriers  between  them,  to 
make  the  same  political  arrangements  with  each  other, 
or  with  foreign  nations.  Difference  of  policy,  if  the 
several  states  were  disconnected  and  at  liberty  to  regu- 
late and  negotiate,  upon  their  own  suggestion,  with  their 
neighbors  and  others  would  exist,  and  not  improbably 
would  give  rise  to  collisions  and  jealousies  between  them. 
Territory,  foreign  to  that  which  appertains  to  the  several 
states,  might  furnish  inducements  to  one,  or  to  several  of 
the  states,  for  its  trade  and  friendship,  or  for  its  hostility, 
its  subjugation  or  acquisition,  which  it  would  not  afford 
to  other  of  the  several  states,  or  which  would  not  arise 
as  the  states  are  now  constituted,  under  and  controlled  in 
these  matters  by  the  union. 

In  a  disconnected,  independent  situation,  each  state 
acting  for  itself,  the  citizens  or  residents  of  a  state  would 
be  more  likely  and  more  competent  to  invent  schemes  of 
supposed  individual  advantage,  growing  out  of  the  for- 
eign intercourse  and  relations  of  the  state,  which  might 
ultimately  prove  disastrous  and  ruinous  to  the  political 
existence  of  the  state,  as  a  republican  government. 
These  supposed  difficulties  or  contingencies  are  avoided 
by  the  restrictions,  b}'  which  the  authority  and  jurisdic- 
tion of  a  state  is  prohibited  from  any  and  all  interference 
in  matters  not  connected  with  the  domestic  and  local  af- 
fairs which  arise  within  and  concern  its  own  territory 
and  citizens  exclusively^  The  constitution  also  jDrovides, 
that  no  state  shall  coin  money,  or  make  any  thing  but 
gold  and  silver  coin  a  tender  in  payment  of  debts.     In  a 


THE    SCIENCE     OF     GOVERNMENT.  209 

rude  state  of  society,  its  trade  and  business  operations 
are  carried  on  and  conducted,  to  a  considerable  extent,  by 
the  means  of  barter  and  exchange.  As  it  progresses  in 
civilization,  in  wealth,  in  art  and  science,  such  mode  of 
negotiation  becomes  cumbersome,  inadequate,  and  it  is 
abandoned  for  the  use  of  gold  and  silver  manufactured 
or  made  into  coin.  Coin,  generally,  has  upon  it  the  head 
of  the  sovereign,  or  some  insignia  of  the  government 
under  whose  authority  it  is  issued,  with  a  mark  or  figure 
showing  its  legal  value.  This  coin  circulates  as,  and  is 
the  money  of  the  country  in  wdiicli  it  is  made,  and  is  re- 
garded as  the  standard  of  value  in  all  negotiations.  In 
another  stage  of  society,  in  which  the  mercantile  and 
manufacturing  interests  and  the  agricultural  pursuits  be- 
come enlarged  and  extended,  banks  are  established,  and 
their  bills,  as  a  matter  of  consent,  are  used  as  substitutes, 
and  as  the  representatives  of  gold  and  silver.  In  all  coun- 
tries in  which  gold  and  silver  are  used  as  coin,  it  is  issued 
under  the  authority  of  government,  by  which  its  quality 
and  value  or  denomination  is  regulated.  The  external 
and  territorial  aspect  of  the  United  States  is  favorable  to 
the  residence  of  a  people  of  the  sarne  general  habits  and 
views,  and  the  people  must,  from  necessity  of  position, 
have  intercourse,  more  or  less  extended,  with  each  other. 
This  fact  shows  the  expediency  and  fitness  of  certainty 
and  uniformity,  in  those  matters  which  have  no  peculiar 
local  bearing.  The  creation  and  security  of  monej^,  of 
coin,  is  as  essential  in  every  state,  as  it  can  be  in  any  one 
of  the  several  states ;  it  was,  therefore,  of  great  advan- 
tage to  the  people  of  the  United  States,  to  have  its  regu- 
lation conferred  upon  the  federal  government,  to  the  ex- 
clusion of  the  states.  Another  branch  of  the  same  sub- 
ject is,  the  mode  in  which  debts  may,  as  matter  of  right, 
be  paid  and  discharged.  In  the  early  history  of  the 
United  States,  many  difficulties  were  encountered,  and 

27 


210  THK     SCIENCE     OF     GOVERNMENT. 

losses  sustained,  by  the  inability  ol"  the  people  to  perform 
their  promises,  to  pay  their  debts;  Avhich  inability  arose 
from  the  condition  of  society  and  of  business  generally. 
In  all  such  emergencies,  repudiation  is  a  remedy  adopted 
by  many,  whose  means  are  inadequate  ;  and  whenever  a 
large  proportion  of  the  community  are  surrounded  by 
pecuniary  embarrassment,  resort  is  had  to  stop,  to  stay- 
laws  ;  at  such  times  the  science  of  law  becomes  popular, 
the  aid  of  lawyers  is  sought,  because  the  one  through  the 
assistance  of  the  others  is  made  available,  to  furnish  the 
means  of  paying  or  of  delaying  payment  of  debts  until  a 
more  convenient  season.  To  obviate  these  difficulties,  to 
prevent  legislation  such  as  I  have  suggested,  the  constitu- 
tion of  the  United  States  wisely  restrained  the  power 
and  jurisdiction  of  the  several  states,  by  saying  that  they 
should  not  make  any  thing  except  gold  and  silver,  made 
into  coin  under  the  direction  of  the  United  States,  a  legal 
tender  in  payment  of  debt.  Every  one  who  reads  the 
early  history  of  the  several  states,  or  of  any  new  coun- 
try, must  perceive  and  admit  the  force  and  propriety  of 
the  restriction.  Another  important  provision  is  that 
which  says,  no  state  shall  emit  bills  of  credit.  This 
clause  of  the  constitution  has  been  the  subject  of  judicial 
discussion  and  decision.  Efforts  have  been  made  to  evade 
or  avoid  the  provision,  and  much  difference  of  opinion 
has  been  entertained  by  political  and  professional  persons. 
Many  of  the  several  states  have  been  accustomed  to  bor- 
row money,  and  to  furnish  corporations  with  their  credit ; 
and  in  so  doin^,  in  some  instances,  have  caused  great  em- 
barrassment ai  d  loss,  and  have,  beyond  doubt,  brought 
reproach  upon  onr  country  and  its  institutions.  The  loan 
of  money,  or  the  procuration  of  money  by  the  several 
states,  has  been  accomplished  by  the  means  of  bonds  and 
obligations  of  various  kinds,  payable  or  redeemable  at  a 
fixed  time,  or  at  the  pleasure  of  the  state  issuing  them, 


THE     SCIENCE     OF     GOVERNMENT.  211 

with  interest.  The  words,  bills  of  credit,  are  of  a  mer- 
cantile character  and  use,  and  it  is  very  common  for  a 
merchant  to  authorize  another  to  draw  upon  him,  or  upon 
his  foreign  banker  or  correspondent,  and  to  give  or  fur- 
nish a  letter  of  credit,  limited  or  without  limit.  These 
obligations  of  the  several  states,  issued  when  they  effect 
a  loan,  or  dispose  of  their  responsibility  and  credit  to 
others,  if  a  close  and  rigid  construction  of  the  constitu- 
tion of  the  United  States  had  been  adopted,  must  have 
been  rejected  and  disallowed  as  an  infringement  of  the 
provision  in  relation  to  bills  of  credit.  This  construction, 
however,  has  not  been  adopted,  and  it  is  to  be  regarded 
as  settled,  that  the  several  states  may,  without  doing  vio- 
lence to  the  constitution  of  the  United  States,  issue  bonds 
and  other  obligations,  in  payment  or  as  evidence  of 
money  borrowed  for  the  public  use. 

This  prohibition  has  generally  been  approved  and  com- 
mended. One  of  the  writers  of  the  Federalist,  in  its  ad- 
vocacy and  support,  said,  "  this  prohibition  must  give 
pleasure  to  every  citizen,  in  proportion  to  his  love  of 
justice  and  his  knowledge  of  the  true  springs  of  public 
prosperity.  The  loss  which  America  has  sustained  since 
the  peace,  from  the  pestilent  effects  of  paper  money  on 
the  confidence  between  man  and  man,  on  the  confidence 
in  the  public  councils,  on  the  industry  and  morals  of  the 
people,  and  on  the  character  of  republican  government, 
constitutes  an  enormous  debt  against  the  states  charge- 
able with  this  unadvised  measure,  which  must  long  re- 
main unsatisfied,  or  rather  an  accumulation  of  guilt, 
Avhich  can  be  expiated  no  otherwise  than  by  a  voluntary 
sacrifice  on  the  altar  of  justice  of  the  power  which  has 
been  the  instrument  of  it. 

In  addition  to  these  considerations,  it  may  be  observed, 
that  the  same  reasons  which  show  the  necessity  of  deny- 
ing to   the   states  the  power  of  regulating  coin,  prove, 


212  THE     SCIENCE     OF     GOVERNMENT. 

with  equal  force,  that  they  ought  not  to  be  at  liberty  to 
substitute  a  paper  medium  instead  of  coin.  Had  every 
state  a  right  to  regulate  the  value  of  its  coin,  there  might 
be  as  many  different  currencies  as  states,  and  thus  the 
intercourse  among  them  would  be  impeded.  Retrospec- 
tive alterations  in  its  value  might  be  made,  and  thus  the 
citizens  of  other  states  be  injured,  and  animosities  be 
kindled  among  the  states  themselves.  The  subjects  of 
foreign  powers  might  suffer  i'rom  the  same  cause,  and 
hence  the  union  be  discredited  and  embroiled  by  the  in- 
discretion of  a  single  memljer.  No  one  of  these  mischiefs 
is  less  incident  to  a  power  in  the  states  to  emit  paper 
money  than  to  coin  gold  or  silver."  From  this  com- 
mentary, which  I  have  copied  from  the  work  referred  to, 
it  seems,  that  the  design  and  object  of  the  prohibition 
upon  the  states  to  emit  bills  of  credit,  was  to  prevent  the 
issuing  and  circulation  of  paper  to  be  used  by  the  com- 
munity for  its  ordinary  purposes  as  money.  This  is  the 
sense  in  which  the  terms  have  generally  been  under- 
stood ;  they  w^ere  so  used  in  relation  to  the  paper  cur- 
rency issued  by  congress  during  the  revolution,  and  to 
similar  currency  issued  by  the  several  states.  These 
words  had  been  used  in  this  manner  prior  to  and  at  the 
adoption  of  the  federal  constitution,  and  the  fair  pre- 
sumption is,  that  the  adoption  of  the  words  was  an  adop- 
tion of  the  meaning  or  use  which  had  been  applied  to 
them ;  this  is  a  common  and  ordinary  principle  of  con- 
struction. The  late  Mr.  Justice  Story  said,  upon  this 
subject,  that  bills  of  credit,  at  the  adoption  of  the  consti- 
tution, were  understood  to  signify  a  paper  medium  in- 
tended to  circulate  between  individuals,  and  between  gov- 
ernment and  individuals,  for  the  ordinarj^  purposes  of 
society  ;  and  in  language  peculiar  to  himself,  he  exhibited 
the  difficulties  which  had  arisen,  and  which  must  arise 
from  their  use  for  such  purpose. 


^  THE     SCIENCE     OF     GOVERNMENT.  213 

In  a  case  against  the  state  of  Missouri,  the  supreme 
court  of  the  United  States  say,  the  term  "bill  of  credit" 
may  comprehend  any  instrument  by  which  a  state  en- 
gages to  pay  money  at  a  future  day,  thus  including  a  cer- 
tificate given  for  money  borrowed.  But  the  language 
of  the  constitution,  and  the  mischief  to  be  prevented, 
limit  the  inter^Dretation  of  the  terms  used  in  the  instru- 
ment ;  the  word  emit  is  never  employed  in  describing 
those  contracts  by  which  a  state  binds  itself  to  pay  money 
at  a  future  day  for  services  actually  received,  or  for 
money  borrowed  for  j^resent  use.  To  emit  bills  of  credit 
convej^s  to  the  mind  the  idea  of  issuing  paper  intended 
to  circulate  through  the  community  for  its  ordinary  pur- 
poses as  money,  which  paper  is  redeemable  at  a  future 
day.  The  same  provision  has  more  recently,  in  a  case 
against  the  bank  of  Kentucky,  been  before  the  same 
court,  in  which  these  principles  were  not  denied  or  re- 
jected ;  but  they  were  applied,  by  a  majority  of  the  court, 
to  a  state  of  facts,  which  might  well  have  induced  a  dif- 
ferent application  of  the  principles  than  was  in  such  case 
made  by  the  court.  The  restrictions  in  relation  to 
money,  to  the  payment  of  debts,  by  any  thing  except 
gold  and  silver,  to  the  emission  of  bills  of  credit,  were  de- 
signed to  uphold  private  credit,  to  prevent  injustice  by 
any  one  state  to  the  citizens  of  another,  or  to  the  sub- 
jects of  foreign  countries,  who  might  be  induced  or  per- 
mitted to  enter  into  contracts  and  negotiations  with 
American  citizens ;  they  were  also  designed  to  restrain, 
to  prevent  the  several  states  from  embarking  in  enter- 
prises not  essential  to  the  legitimate  exercise  of  their 
powers  of  sovereignt}^  The  several  states  are  also  j)ro- 
hibited  from  passing  bills  of  attainder  and  ex  post  facto 
laws. 

Prior  to  the  union,  bills  of  attainder  were  frequently 
passed  by  the  several  states  to  prevent  offences  against 


214  THE     SCIENCE     OF     GOVERNMENT. 

their    sovereiorntv.       Political    oflences    are    dano-erous 

Ok-  o 

matters  of  legislation,  and  should  not  be  extended  or 
applied,  except  to  cases  of  the  most  urgent  necessity. 
The  power  of  the  states  to  i)ass  such  laws,  after  the 
adoption  of  the  federal  constitution,  was  not  essential  to 
the  safety  or  security  of  the  states,  as  independent  sove- 
reignties, because  the  United  States,  in  its  constitution, 
entered  mto  a  stipulation  to  maintain  in  the  several 
states  their  sovereignty,  and  a  republican  form  of  gov- 
ernment. 

Laws,  designed  to  o])erate  upon  transactions  jiast,  and 
which  were  not  the  subject  of  legal  cognizance,  at  the 
time  of  their  accomplishment,  cannot  be  made  with  pro- 
priety. Every  person  is  by  legal  intendment  presumed 
to  know  what  the  law  is,  and  is  required  to  regulate  his 
conduct  in  conformity  with  his  legal  duty.  Ignorance  of 
law  is  not,  and  cannot  be  regarded  as  an  excuse  or  justi- 
fication of  its  violation.  But  no  one  can  reasonably  or 
rightfully  be  expected  or  required  to  knoAv  what  the  law 
may  be  at  a  future  time.  No  state  is  permitted  to  grant 
any  title  of  nobility.  This  prohibition  upon  state  author- 
ity has  not  been  so  far,  in  our  history,  of  much  practical 
importance.  At  the  time  of  the  adoption  of  the  consti- 
tution of  the  United  States,  great  fear  and  jealousy  upon 
this  subject  was  entertained,  and  much  discussion  was 
had  in  relation  to  the  title  which  should  be  conferred 
upon  the  chief  executive  magistrate ;  these  fears  and 
apprehension  of  danger  from  such  source  have  been  dis- 
pelled. A  mere  title,  without  political  power  or  dignity, 
or  property  connected  therewith  and  resulting  from  its 
possession,  is  of  no  value,  and  where  these  are  enjoyed, 
the  title  is  of  little  import ;  a  name  or  title,  without  poli- 
tical power  or  dignity  or  estate,  may  well  be  regarded 
as  a  reproach  to  him  who  assumes  or  purchases  it,  or 
upon  whom  it  may  be  conferred.     The  several  states  are 


THE     SCIENCE     OF     GOVERNMENT.  215 

prohibited  from  the   creation  of  new  states.     No  new 
state  can  be  formed  or  erected  within  the  jurisdiction  of 
any  other  state  ;  nor  any  state  be  formed  b}^  the  junction 
of  two  or  more  states  or  parts  of  states,  without  the  con- 
sent of  the   legislatures  of  the  states  concerned,  as  well 
as  of  the  congress.     The  same  principle  which  restrains 
the  several  states  from  negotiating  political  contracts  with 
foreio-n  nations,  is  exhibited  in  the  restrictions  in  relation 
to  the  formation  of  new  states.     By  the  means  of  these 
provisions,  political  aspirations  which  some  of  the  states 
might  entertain  for  their  own  enlargement,  aggrandize- 
ment, or  relative  importance,  are  checked,  and  each  state 
is  thus  enabled  to  pursue  its  true  dignit}^,  by  an  exercise 
of  its  appropriate  trusts,  and  -by  a  watchful  regard  for  the 
welfare  of  its  citizens.     The  constitution  contains  another 
restriction  upon  state  power  which  has  been  the  subject 
of   frequent  application,  and   has   been  of   the   utmost 
importance  to  the  security  of  private  right  and  of  public 
faith.     The  provision  is,  "  no  state  shall  pass  any  law  im- 
pairing the  obligation  of  contracts."     It  is  not  natural  or 
easy  to  suppose,  that  any  free  government  would  under- 
take by  its  legislation  to  interfere  with  the  private  con- 
tracts of  its  citizens,  in  matters  appertaining  to  mere  pri- 
vate right.     The  protection  of  such  right  is  the  primary 
object   of    every   legitimate    government,    inasmuch   as 
public  right  is  the  result  of,  and  is  designed  to  preserve, 
individual   right.      The    supreme    court   of   the    United 
States,  in  its  adjudications  upon  this  clause  of  the  consti- 
tution, has  commended  itself  to  the  respect  and  gratitude 
of  the   country.     In  one  of  the  earliest  cases  in  which 
the  subject  was  discussed,  a  statute  of  Georgia  was  pre- 
sented to  the  court  for  consideration.     This  state  passed 
an  act  authorizing  a  patent  to  issue,  granting  a  tract  of 
land  lying  within  the  limits  of  that  state  5    after  the 
patent  had  been   granted,  pursuant    to   the  act  which 


216  THK     SCIENCE     OF     GOVERNMENT. 

authorized  it,  the  Icgi.xlature  repealed  the  act.  The  court 
determined  that  this  repeal  was  repugnant  to  the  consti- 
tution of  the  United  States,  because  it  impaired  the 
obligation  of  the  contract,  which  the  patent  implied. 

The  title  to  land,  and  its  acquisition,  is  a  matter  of  state 
legislation  ;  but  a  state  or  an  individual  having  granted 
land,  and  having  received  a  considerati<m  therefor,  cannot 
rightfully  resume  or  impair  the  grant,  because  such  grant 
is  a  contract  executed.  In  another  case,  the  state  of 
New  York  passed  an  insolvent  law,  by  which  it  undertook 
to  discharge  debtors  from  their  liabilities  incurred  prior 
to  its  enactment ;  this  statute  was  regarded  as  unconsti- 
tutional, because  it  impaired  the  obligation  of  contracts, 
and  so  far  it  was  adjudicated  to  be  an  unauthorized  state 
legislation,  and  void.  Mau}^  other  cases  of  similar  char- 
acter have  arisen.  In  all  these  cases,  the  state  authori- 
ties have  readil}'  yielded,  and  the  firmness  and  integrity 
of  the  highest  judicial  tribunal  known  to  our  laws,  have 
been  admitted. 

The  most  important  case  in  which  this  clause  of  the 
constitution  has  been  discussed,  is  that  commonly  called 
the  Dartmouth  College  Case.  This  institution  had  a 
charter  from  the  British  crown  prior  to  the  revolution, 
by  and  under  which  i)roperty  was  holden  for  the  benefit 
of  the  institution,  which  had  been  given  by  the  Earl  of 
Dartmouth  and  by  other  individuals.  The  legislature  of 
New  Hampshire  undertook  to  increase  the  number  of  the 
trustees,  and  to  exercise  control  over  the  college  at  its 
pleasure ;  this  was  resisted,  and  the  sanctity  of  contract, 
by  the  decision  which  was  made,  was  placed  upon  an 
enlarged,  comprehensive,  and  firm  basis.  The  effect  which 
has  been  produced  by  the  principles  and  reasoning  of 
this  case  cannot  be  measured.  The  case,  in  its  preparation 
and  argument,  was  conducted  on  both  sides  with  ability, 
and  by  eminent  men.     The  brief  in  favor  of  the  college 


THE     SCIENCE     OF     GOVERNMENT.  217 

was  mainly  prej)ared  by  an  individual  who  some  few 
years  since  passed  away ;  an  individual  who,  when  living, 
as  a  jurist  had  no  rival,  when  dead  left  no  superior/^' 

The  argument  upon  the  same  side  was  made  by  an  in- 
dividual who  has  since,  and  now  recently  passed  away ; 
although  dead,  he  lives  in  our  recollection,  in  his  public 
works,  in  his  public  acts ;  he  lives  in  the  influence  which 
those  works,  those  acts  will  exert  upon  our  constitution 
and  the  institutions  which  it  upholds.''' 


*  Hon.  Jeremiah  Mason  ;  he  was  assisted  by  Hon.  Jei-emiah  Smith, 
f  Hon.  Daniel  Webster. 


28 


LECTURE    yill. 


THE  FEDERAL  AND  STATE  JUDICIAL  DEPARTMENTS.  —  IN  GENERAL  TERMS,  THE 
BOUNDARY  BETWEEN  THEM  MAY  BE  DESCRIBED  BY  SAYING,  THE  FEDERAL 
JUDICIARY  IS  INTRUSTED  WITH  THE  FINAL  AND  CONCLUSIVE  ADJUDICATION 
OF  ALL  MATTERS  ARISING  UNDER  OR  DEPENDENT  UPON  THE  CONSTITUTION, 
LAWS,  OR  TREATIES  OF  THE  UNITED  STATES,  OR  THE  LAW  OP  NATIONS.  — THE 
STATE  JUDICIARY  IS  INTRUSTED  WITH  THE  FINAL  AND  CONCLUSIVE  ADJUDICA- 
TION OF  ALL  MATTERS  WHICH  DO  NOT  ARISE  UNDER  OR  DEPEND  UPON  THE 
CONSTITUTION,  LAWS,  OR  TREATIES  OF  THE  UNITED  STATES,  OR  THE  LAW  OF 
NATIONS.* 


Liberty  is  a  relative  term.  Some  persons  regard  it  as 
a  right  in  every  individual  to  act  in  accordance  with  his 
own  judgment.  Such  liberty  is  unknown  to,  and  can- 
not be  found  in  connection  with,  or  as  the  result  of  gov- 
ernment, or  of  the  law  of  society.  Government  and  so- 
cieties are  established  for  the  regulation  of  social  inter- 
course, of  social  institutions.  Civil  liberty  is  not  depen- 
dent upon  any  particular  form  or  system  to  the  exclusion 
of  every  other.  The  purpose  of  legitimate  government 
is  the  protection  of  person,  character,  and  property.    This 


*  In  speaking  of  the  legislative  department,  I  used  the  terms  "  supreme  and 
exclusive."  In  relation  to  the  judiciary,  I  use  the  terms  "  final  and  conclusive," 
not  from  any  difference  in  the  extent  of  the  different  powers,  but  because  a 
difference  exists  in  the  form  in  which  they  may  be  rendered  available.  Some 
suits,  commenced  in  a  state  court,  may  be  transferred  to  a  court  of  the  United 
States.  In  a  class  of  cases  the  supreme  court  of  the  United  States  may 
review  the  decisions  of  a  state  court  by  writ  of  error. 


l!2(l  THK     SCIENCE    OF    GOVERNMENT. 

may  be  extended  to  the  citizen  by  an  absolute  govern- 
ment. Experience  and  history,  however,  admonish  us, 
that  such  government  does  not  ordinarily  aflbrd  such  pro- 
tection, and  cannot  with  safety  be  relied  upon.  Pro- 
tection may  be  extended  to  the  citizen  of  a  constitutional 
government,  in  which  few  only  of  the  people  exercise 
any  control.  Certainty  of  protection  to  person,  cha- 
racter, and  property,  can  only  be  attained  in  a  govern- 
ment in  which  all  the  people,  or  a  very  large  proportion 
of  them,  exercise  an  influence  in  the  establishment  and 
in  the  management  of  the  public  trusts,  and  in  which  these 
trusts  and  the  will  of  the  people  are  carried  into  effect 
through  the  instrumentality  of  difierent  institutions  or 
departments.  Our  system,  as  has  been  suggested,  is  com- 
posed of  different  sovereignties,  each  sovereignty  having 
its  own  departments  and  division  of  power.  The  legis- 
lative, judicial,  and  executive  departments  are  equal  in 
rank  and  dignity.  They  are  independent  of  each  other, 
and  are  charged  with  distinct  and  different  trusts.  The 
laws  are  established  by  the  first,  construed  by  the  second, 
and  executed  by  the  third.  This  is  familiar  to  you ;  the 
machinery  is  simple,  and  you  perceive  without  difficulty 
how  these  departments,  parts  of  an  entire  and  of  the  same 
system,  act  in  harmony  ■with  each  other.  The  sugges- 
tion of  collision,  of  conflict  between  these  departments,  is 
not  often  made.  The  legislative  department  is  governed 
in  its  action  by  a  constitution,  and  by  certain  fixed  prin- 
ciples, within  which  it  incurs  no  responsibility  to,  or 
danger  of  resistance  from,  any  other  dejDartment.  And 
so  long  as  its  action  is  restricted  within  the  limits  imposed, 
its  decrees  constitute  the  law  of  the  sovereignty  to  which 
it  appertains.  Whenever  it  disregards  and  goes  beyond 
these  limits,  its  decrees  are  of  no  force,  and  they  may  and 
will  he  declared  b}'  another  department  void  and  of  no 
effect.     The  judicial  department  is   not   intrusted  with 


THE     SCIENCE     OF     GOVERNMENT.  221 

power  to  say  what  the  hiw  shall  be  upon  any  subject ;  it 
may  and  must  say  what  the  law  is.  It  determines  the 
rights  of  individuals  ;  it  determines  the  nature  and  ex- 
tent of  obligation,  which  society,  through  its  legislative 
department,  has  imposed  upon  its  members.  It  controls 
the  action  of  ofi&cers  in  all  matters  in  relation  to  which 
they  are  not  clothed  with  personal  discretion.  It  re- 
strains such  discretion  within  constitutional  and  legal 
limits.  It  determines  whether  the  legislative  department 
has  or  has  not  in  any  particular  transcended  its  rightful 
jurisdiction.  The  executive  department  is  bound  to  see 
that  the  laws  are  executed  and  carried  into  effect,  so  far 
as  they  concern  the  public  interest  or  the  public  peace, 
and  to  suppress  all  and  every  individual  effort  which  may 
be  made,  by  any  member  or  members  of  the  community, 
to  assert  his  or  their  actual  or  supposed  rights,  in  a  mode 
not  warranted  by  law.  No  person  is  allowed  to  be  his 
own  avenger,  or  to  take  the  law  into  his  own  hands.  He 
must  resort  to  the  departments  to  which  reference  has 
been  made  ;  he  must  seek  protection  in  and  from  the  in- 
stitutions established  or  permitted  by  government. 

I  have  thus  stated  the  outline  of  these  departments,  for 
the  purpose  of  deducing  or  exhibiting  an  analogy  there- 
from, which  may  illustrate  our  system,  composed  of  two 
sovereignties.  The  several  departments  of  which  I  have 
spoken  act  harmoniously  and  in  unison,  because  they 
act  for  different  purposes,  although  they  act  upon  the 
same  territory,  upon  the  same  persons,  upon  the  same 
contracts,  and  upon  the  same  things.  Equally  simjDle  and 
consistent  it  is  to  say  and  to  perceive,  that  two  sove- 
reignties acting  upon  the  same  territory,  upon  the  same 
persons  and  things,  for  distinct  and  separate  purposes, 
may  act  in  unison  and  in  harmony  with  each  other. 
The  national  government,  through  the  instrumentality  of 
its  legislative,  judicial,  and  executive  departments,  may 


222  THE    SCIENCE    OF    GOVERNMENT. 

enact,  construe,  and  execute  a  statute  within  and  upon 
any  subject  confided  to  its  jurisdiction.  The  state  gov- 
ernment, through  its  legislative,  judicial,  and  executive 
departments,  upon  any  subject  confided  to  its  jurisdic- 
tion, may  enact,  construe,  and  carry  into  effect  a 
statute.  No  difficulty  arises  or  can  arise  between  the 
two  sovereignties,  because  they  act  upon  different  sub- 
jects or  for  different  purposes.''' 


*  Law  Reporter,  New  Series,  vol.  iv.  p.  335.  Boston,  October,  1851. —  Con- 
flict of  Laws.  —  Federal  and  State  Sovereignty. —  Opinion  of  Charles  B.  Good- 
rich. 

Case  Stated.  — "  Thomas  Sims,  said  to  be  a  fugitive  from  service  or  labor, 
due  to  a  citizen  of  the  state  of  Georgia,  is  now  in  the  actual  custody  of  Charles 
Devens,  marshal  of  the  United  States,  by  virtue  of  an  order  or  warrant  issued 
by  a  commissioner  of  the  United  States,  upon  the  application  of  the  party,  by 
liis  agent,  to  Avliich  the  service  is  said  to  be  due.  He  is  also  in  the  custody  of 
said  Devens,  under  and  by  virtue  of  an  order  or  warrant  issued  by  a  commis- 
sioner of  the  United  States,  founded  upon  a  complaint  against  Sims,  for  an 
alleged  criminal  offence  against  the  laws  of  the  United  States." 

Questions  Proposed.  —  "  1st.  Has  the  sheriff  of  Suffolk  county,  a  state  officer, 
by  himself  or  deputy,  a  legal  right,  by  virtue  of  process,  civil  or  criminal,  issued 
by  and  under  the  authority  of  the  commonwealth  of  Massachusetts,  to  arrest 
and  take  the  said  Sims,  from  the  custody  of  said  Devens,  against  his  consent, 
and  for  that  purpose  use  such  force  as  may  be  requisite  to  accomplish  such 
seizure  ? 

"  2d.  Suppose  the  criminal  process  in  the  hands  of  Devens  shall  be  released, 
abandoned,  or  in  any  manner  become  inoperative,  —  the  said  Devens  retaining 
the  said  Sims  under  the  process  by  which  he  holds  him  as  an  alleged  fugitive, 
—  has  the  sheriff  or  his  deputy,  in  such  event,  by  virtue  of  state  process,  civil 
or  criminal,  a  legal  right  to  seize  said  Sims,  and  to  use  such  force  as  may  be 
adequate  to  divest  the  custody  of  said  Devens  ? 

Opinion.  —  "I  have  examined  and  carefully  considered  the  two  questions 
upon  which  an  opinion  is  asked.  I  have  no  hesitation  or  doubt,  in  relation  to 
the  law  applicable  to  the  case  stated  in  either  aspect  exhibited.  The  sheriff 
has  no  legal  right  or  authority  to  divest  the  custody  of  the  marshal  of  the  United 
States,  against  his  consent,  under  the  state  of  facts  presented  in  either  of  the 
(luestions  proposed.  K  such  attempt  to  use  force  should  be  made  by  the  sheriff, 
it  will  bo  the  right  and  duty  of  the  marshal  to  resist,  at  all  hazards,  and  the  pro- 
cesses in  the  hands  of  the  sheriff  will  afford  him  no  protection  for  any  conse- 
quence which  may  result  from  such  a  conflict  of  force.  I  sui)posc  any  person, 
even  slightly  conversant  with  the  principles  of  jurisprudence,  would  readily 
answer  the  first  inquiry  as  I  have  answered  it.     The  solution  of  the  second 


THE     SCIENCE     OP     GOVERNMENT.  223 

No  system  of  government  is  perfect,  no  system  of  gov- 
ernment can  at  all  times  and  under  all  circumstances, 


question  is  equally  simple  and  clear,  as  is  that  of  the  first.  Upon  this,  how- 
ever, I  am  aware,  a  different  opinion  has  been  expressed  by  gentlemen  of  the 
legal  profession,  basing  their  opinion  upon  an  assumption,  that  criminal  process 
will  defeat  and  override  civil  process.  I  will,  therefore,  state  some  of  the  rea- 
sons of  my  opinion  upon  the  second  question.  The  inquiry  which  results  from 
the  case  stated,  in  its  second  supposed  aspect,  is  not  whether  criminal  process  is 
paramount  to  civil  process.  It  is  whether  the  commonwealth  of  IMassachusetts 
can,  by  force,  legally  and  rightfully  dispossess  the  United  States  of  a  person  of 
which  the  United  States,  by  its  officer,  under  its  laws,  has  actual  custody  and 
possession.  It  is  distinctly  a  question  of  sovereignty.  The  use  or  purpose  to 
which  the  United  States,  the  sovereignty  in  actual  possession,  may  desire  to  de- 
vote the  pei'son  which  is  in  such  possession,  the  use  or  jDurpose  to  which  the 
commonwealth  of  Massachusetts  may  design  to  appropriate  the  person,  when 
the  commonwealth  shall  have  obtained  the  same,  are  collateral  and  immaterial 
matters,  when  discussing  the  question  whether  the  commonwealth,  by  its  offi- 
cers, may  legally  use  force  to  acquire  the  possession. 

"  The  use  and  purpose  of  Massachusetts  must  be  deferred  imtil  the  use  and 
purpose  of  the  United  States  shall,  in  some  legal  manner,  be  compensated, 
satisfied,  or  released ;  or  until  some  judicial  tribunal,  having  authority  in  the 
premises,  shall  adjudicate  that  the  claim  of  Massachusetts  is  paramount  to  that 
of  the  United  States,  and  thereupon  stay  or  release,  temporarily  or  permanent- 
ly, as  the  case  may  be,  the  custody  of  the  United  States.  The  marshal  of  the 
United  States,  in  relation  to  process  in  his  hands,  civil  or  criminal,  is  subject  to 
the  action  and  control  of  the  judiciary  of  the  United  States,  and  if  the  com- 
monwealth of  Massachusetts  has  a  title  to  person  or  projierty,  in  the  hands  of 
the  marshal,  paramount,  in  a  legal  view,  to  the  title  of  the  marshal,  the  courts 
of  the  United  States  are  competent  to  direct  him  to  deliver  the  person  or  pro- 
perty so  held  by  him,  to  those  having  the  paramount  title.  The  result  at  which 
I  have  arrived,  may  be  illustrated  by  a  variety  of  considerations,  by  every  con- 
sideration which  can  legally  be  applied  to  the  subject  of  discussion.  The  great 
argument,  in  opposition  to  the  view  presented,  is  that  criminal  process  is  and 
must  be  paramount  to  civil  process.  It  is  so  when  the  civil  and  criminal  jiro- 
cesses  issue  from  the  same  sovereign.  The  commonwealth  of  Massachusetts, 
when  it  has  a  person  or  property  in  its  custody  and  control,  which  is  liable  to 
several  distinct  obligations,  some  of  a  private  character,  some  of  a  public  natuz-e, 
may  well  say,  in  conformity  with  its  own  laws,  to  which  obligation,  the  person 
or  property  shall  be  applied.  It  may  well  say  its  civil  process  shall  be  merged, 
suspended,  or  postponed  by  its  criminal  process  and  its  exigencies.  It  cannot 
say,  that  the  sovereignty  of  the  United  States,  which  has  once  rightfully  attached 
to  person  or  property,  may  legally  be  divested  by  force. 

"  K  the  supposed  right  of  Massachusetts  is  paramount,  upon  legal  principles, 
to  that  of  the  United  States,  its  remedy  is  by  application  to  the  judiciary  of 


224  THE    SCIENCE     OF     GOVERNMENT. 

accomplish  every  purpose  which  it  might  be  convenient 
or  desirable  to  have  accomplished.     Under  our  system. 


the  United  States,  which,  if  the  assumption  of  the  commonwealth  be  well 
founded  in  law,  M-ill  direct  its  ofiicer  and  those  acting  under  the  authority  of  the 
United  States  to  withdraw.  The  same  result  flows  from  the  character  of  the 
authority  which  tiic  law  reposes  in  the  sherifi'.  Ilis  official  duties  are  circum- 
scribed ill  tlioir  exercise  to  and  within  his  legal  precinct.  The  term  '  precinct,'  is 
technical,  and  in  the  English  and  in  the  ^Vincrican  law  ordinarily  means  a  district, 
or  a  certain  defined  territory.  This  is  not  its  -only  meaning ;  and  in  the  com- 
plex system  of  government,  under  which  the  American  people  live,  ex  necessi- 
tate, must  and  does  have  a  more  extensive  and  a  broader  import.  The  precinct 
of  the  sheriff,  territorially,  embraces  the  county  of  Suffolk,  and,  in  some  speci- 
fied cases,  not  material  to  the  present  inquiry,  is  extended  beyond.  So  the 
precinct,  of  the  marshal  of  the  ITnited  States  embraces  the  same  territory. 
When  the  marshal  seizes  person  or  property,  within  the  territory  common  to 
both  sovereignties,  that  of  the  United  States,  and  of  the  state,  quoad  such  per- 
son or  property,  they  are,  during  the  continuance  of  such  seizure,  without  the 
legal  precinct  of  the  sheriff;  when'  the  sheriff  makes  the  first  seizure,  and 
thereby  has  possession,  the  same  result  occurs  as  to  the  rights  of  the  marshal. 

"  So  it  is  a  principle  well  established,  that  when  two  jurisdictions  have  con- 
current authority,  the  one  which  is  first  exercised,  so  as  effectually  to  attach,  is 
no  longer  concurrent  with,  but  becomes  and  is  exclusive  of  the  other.  In  a 
single  word,  every  independent  sovereignty  is  the  exclusive  judge  of  its  own 
powers,  and  may  and  must  determine  the  extent  thereof,  and  will,  so  far  as 
legal  right  is  concerned,  so  determine,  until  put  down,  not  by  right,  but  by 
force  —  when  its  independence,  its  sovereignty  will  cease  to  exist.  The  result 
is  therefore  irresistible,  that,  when  the  marshal  of  the  United  States  has  a  per- 
son in  custody,  under  process  issued  by  authority  of  the  United  States,  a  sheriff 
of  the  commonwealth  of  Massachusetts,  with  a  state  process  against  the  same 
person,  cannot,  by  force,  legally  divest  such  custody  for  any  purpose.  Assume 
that  the  purpose  to  be  accomplished  by  the  state  process  is  of  more  importance 
than  the  purpose  of  the  process  in  the  hands  of  the  marshal,  and  is  paramount 
thereto,  the  marshal  may  entertain  a  different  opinion  and  act  upon  it.  Neither 
the  mai-shal  nor  the  sheriff  is  charged  b}-  law  with  the  responsibility  of  deciding 
at  their  peril  any  sudi  difference  of  opinion  or  dispute.  The  marshal  being  in 
possession,  has  tlie  legal  right,  imtil  some  judicial  tribunal,  having  authority  in 
the  premises,  shall  adjudge  that  his  title  must  yield  to  some  other.  These  view.s 
are  sustained  by  legal  and  constitutional  authority ;  they  constitute  and  result 
from  the  principles  upon  which  our  institutions  stand,  and  upon  which  alone 
they  can  successfully  stand. 

"  In  a  case  before  the  late  Mr.  Justice  Story,  The  Invincible,  (2  Gallison,  44,) 
the  court  say, '  The  acts  done  under  the  authority  of  one  sovereign  can  never 
be  subject  to  the  revision  of  the  tribunals  of  another  sovereign.' 

"In  The  United  States  t;.  Peters,  (5  Cranch,  115,)  chief  justice  Marshall,  in 


THE     SCIENCE     OF     GOVERNMENT.  225 

the  rightful  purpose  or  enactment  of  one  and  of  the 
other  sovereignty  may  fail  of  effect,  from  an  inability  to 

giving  the  opinion  of  the  court,  says,  '  The  legislature  of  a  state  cannot  annul 
the  judgment,  nor  determine  the  jurisdiction  of  the  courts  of  the  United  States; 
if  so,  the  constitution  becomes  a  solemn  mockery.' 

"  In  Peck  V.  Jenness,  (7  Howard,  624,  625,)  the  court  adjudicate,  in  conform- 
ity with  its  previous  uniform  course  of  decision,  that  the  courts  of  the  United 
States  cannot  seize  upon  property  in  the  custody  of  the  officers  of  a  state  court, 
which  had  rightfully  attached.  The  court  in  its  judgment  says,  '  Where  the 
jurisdiction  of  a  court,  and  the  right  of  a  plaintiff"  to  prosecute  his  suit  in  it, 
have  once  attached,  that  right  cannot  be  arrested  or  taken  away  by  proceed- 
ings in  another  court.  These  rules  have  their  foundation  not  merely  in  comity, 
but  on  necessity.  For  if  one  may  enjoin,  the  other  may  retort  by  injunction, 
and  thus  the  parties  be  without  remedy ;  being  liable  to  a  process  for  contempt 
in  one,  if  they  dai'e  to  proceed  in  the  other.  Neither  can  one  take  property 
from  the  custody  of  the  other  by  replevin,  or  any  other  process,  for  this  would 
produce  a  conflict  extremely  embarrassing  to  the  administration  of  justice.' 

"In  Brown  i'.  Clarke,  (4  Howard,  4,)  the  court  say,  'In  cases  of  conflicting 
executions  issued  out  of  the  federal  and  state  courts,  a  priority  is  given  to  that 
under  which  there  is  an  actual  seizure  of  the  property  first.' 

"  In  Hagan  v.  Lucas,  (10  Peters,  403,)  it  is  said,  '  Had  the  property  remained 
in  the  possession  of  the  sheriff,  under  the  first  levy,  it  is  clear  the  marshal  could 
not  have  taken  it  in  execution ;  for  the  property  could  not  be  subject  to  two 
jurisdictions  at  the  same  time.  The  first  levy,  whether  it  were  made  under  the 
federal  or  state  authority,  withdraws  the  property  from  the  reach  of  the  process 
of  the  other.  Under  the  state  jurisdiction,  a  sheriff  having  execution  in  his 
hands,  may  levy  on  the  same  goods ;  and  where  there  is  no  priority  on  the  sale 
of  the  goods,  the  proceeds  should  be  applied  in  proportion  to  the  sums  named 
in  the  executions;  and  where  a  sheriff  has  made  a  levy,  and  afterwards  receives 
executions  against  the  same  defendant,  he  may  appropriate  any  surplus  that 
shall  remain  after  satisfying  the  first  levy,  by  the  order  of  the  court.  But  the 
same  rule  does  not  govern  where  the  executions,  as  in  the  present  case,  issue 
from  different  jurisdictions.  The  marshal  may  apply  moneys  collected  under 
several  executions,  the  same  as  the  sheriff.  But  this  cannot  be  done  as  between 
the  marshal  and  the  sheriff.  A  most  injurious  conflict  of  jurisdiction  would  be 
likely  often  to  arise  between  the  federal  and  the  state  courts,  if  the  final  process 
of  the  one  could  be  levied  on  property  which  had  been  taken  by  the  process  of 
the  other.  The  marshal  or  the  sheriff',  as  the  case  may  be,  by  a  levy,  acquires  a 
special  property  in  the  goods,  and  may  maintain  an  action  for  them.  But  if  the 
same  goods  may  be  taken  in  execution  at  the  same  time  by  the  marshal  and  the 
sheriff,  does  this  special  property  vest  in  the  one  or  the  other,  or  both  of  them  ? 
No  such  case  can  exist.  Property  once  levied  on  remains  in  the  custody  of  the 
law,  and  it  is  not  liable  to  be  taken  by  another  execution,  in  the  hands  of  a  dif- 

29 


226  thj:   science   of   government. 

reach  the  person  or  thing,  upon  or  by  which  it  can  only 
be  accuniphshed.  If  one  sovereiirnty  has  in  its  actual 
custody  by  process,  or  other  rightful  autliority,  an}-  person 
or  thing,  the  other  sovereignty  cannot  at  the  same  time 
have  the  actual  custody  of  the  same  person  or  thing. 
The  two  sovereignties  which  compose  our  system,  like 
the  planets,  have  similar  orbits,  but  not  the  same.  Except 
an  occasional  diminution  or  withdrawal  of  the  subject- 
matter  of  power,  or  a  withdrawal  of  the  material  upon 


ferent  oflScer,  and  especially  by  an  officer  acting  under  a  different  juris- 
diction.' 

"In  the  case,  Ex  parte  Dorr,  (3  Howard,  105,)  the  language  of  the  court  is 
decisive :  '  Neither  this  nor  any  other  court  of  the  United  States,  or  judge 
thereof,  can  issue  a  habeas  corpus  to  bring  up  a  prisoner,  who  is  in  custody 
under  a  sentence  or  execution  of  a  state  court,  for  any  other  puq)ose  than  to 
be  used  as  a  witness.  And  It  is  immaterial  whether  the  imprisonment  be  under 
civil  or  criminal  process.  As  the  law  now  stands,  an  individual  who  may  be  in- 
dicted in  a  circuit  court  for  treason  against  the  United  States,  is  beyond  the 
power  of  federal  courts  and  judges,  if  he  be  in  custody  under  the  authority  of 
a  state.  Dorr  is  in  confinement  under  the  sentence  of  the  supreme  court  of 
Rhode  Island,  consequently  this  court  has  no  power  to  issue  a  habeas  corpus  to 
bring  him  before  it.' 

"Burge,  in  his  treatise  upon  the  conflict  of  laws,  referring  to  the  civil  law  for 
his  authority,  says  —  '  It  is  a  fundamental  principle  essential  to  the  sovereignty 
of  every  Independent  state,  that  no  municipal  law,  whatever  be  its  nature  or 
object,  should,  propria  vigore,  extend  beyond  the  limits  of  that  state  by  which 
it  has  been  established.  The  limits  of  Its  operation  are  those  of  the  authority 
by  which  it  Is  imposed.' 

"  Cases  In  abundance,  decided  by  state  courts,  as  well  as  cases  decided  by 
the  courts  of  the  United  States,  may  be  cited  In  consonance  with  the  views 
which  are  here  presented.  The  question  whether  criminal  process  is  para- 
mount to  civil,  as  already  stated,  does  not  and  cannot  arise,  in  discussing  the 
questions  proposed.  State  them  in  any  and  in  every  aspect  in  which  they  can 
be  stated,  and  the  result  Is  a  question  of  sovereignty.  It  is,  whetlier  the  com- 
monwealth of  Massachusetts  can  legally,  by  force,  put  down  the  constitution, 
the  laws,  the  judiciary  of  the  United  States.  I  have  no  hesitancy  in  saying  it 
cannot.  If  the  marshal  of  the  United  States  thinks  fit  to  resist  any  and  every 
forcible  effort  which  may  be  made,  if  any  shall  be,  to  divest  him  of  his  custody, 
even  although  he  hold  only  the  fugitive  warrant,  until  he  shall  be  directed  to 
surrender  by  some  judicial  tribunal  having  jurisdiction  in  the  matter,  no  state 
process  can  be  of  any  avail  to  shield  or  protect  him  who  shall  thus  assail  the 
marshal,  and,  through  him,  the  sovereignty  whose  process  he  holds." 


THE    SCIENCE     OF     GOVERNMENT.  227 

which  power  would  otherwise  act,  I  do  not  discover  any 
inadequacy  or  incompleteness,  or  cause  of  conflict,  in  the 
great  outlines  of  our  complex  system.  The  legislative 
departments  of  the  federal  and  of  the  several  state  gov- 
ernments, have  been  considered. 

I  proceed  to  make  some  suggestions  upon  the  judicial 
department.  Three  things  are  essential  to  its  existence, 
as  a  com^Dctent  and  beneficial  department.  Its  powers 
must  be  commensurate,  coextensive  with  the  power  of 
the  sovereignty  of  which  it  is  a  part.  If  its  action  be 
confined  only  to  a  portion  of  the  matters  to  which  the 
legislative  and  executive  departments  extend,  the  system 
must  be  incomplete,  and  inadequate  to  its  purpose.  In 
this  respect,  no  defect  appears ;  the  several  departments, 
as.  they  are  constituted  in  our  constitutions,  have  the 
required  extent  of  power.  Another  essential  element  of 
the  judicial  department  is,  an  independence  of  popular 
caprice,  independence  of  power,  public  or  private,  except 
such  as  is  prescribed  by  the  law  of  its  creation.  It  has 
generally  been  supposed  that  this  can  be  attained  by  con- 
ferring upon  the  most  elevated  judicial  officers  perma- 
nence of  place,  with  an  ample  provision  for  their  respecta- 
ble and  comfortable  support.  In  accordance  with  this 
view,  judges  generally,  heretofore,  have  held  their  stations 
limited  in  duration  by  their  fidelity  and  good  conduct. 
The  compensation  has,  in  most  instances,  been  inadequate 
to  answer  the  reasonable  expectation  of  those  most  suited, 
from  ability  and  from  study,  to  administer  justice  with 
an  even  hand,  without  fear,  favor,  affection,  or  the  hope 
of  reward.  The  third  element,  without  which  the  judi- 
ciary must  become  a  reproach,  is,  the  integrity  of  those 
intrusted  with  its  important  and  responsible  duties.  This 
can  ordinarily  be  attained  by  selecting  learned  and  emi- 
nent individuals,  conferring  upon  them  permanence  of 


228  THE     SCIENCE     OF     GOVERNMENT. 

place,  and  an  ample  and  full  compensation,  which  will 
enable  them  to  provide  for  themselves  and  their  families 
a  respectable  position  in  society.  The  judicial  depart- 
ment of  .the  United  States  is  coextensive  in  power  with 
the  jurisdiction  of  the  sovereignty  of  which  it  is  a  com- 
ponent branch.  The  constitution  of  the  United  States 
provides,  that  '■'  the  judicial  power  of  the  United  States 
shall  be  vested  in  one  supreme  court,  and  in  such  inferior 
courts  as  the  congress  may  from  time  to  time  ordain  and 
establish.  The  judges  both  of  the  supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compen- 
sation, which  shall  not  be  diminished  during  their  con- 
tinuance in  office."  Under  this  provision,  the  supreme 
court  of  the  United  States,  circuit  courts,  and  district 
courts,  have  been  established,  the  general  construction  of 
which  has  been  given  in  a  previous  lecture.  The  provi- 
sion recited  relates  to  the  tribunals,  the  machinery,  by 
which  the  judicial  power  of  the  government  is  to  be  exe- 
cuted. The  extent  and  subject-matter  of  the  judicial 
power  is  defined  in  the  constitution  in  these  words :  "  The 
judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made  under 
their  authority ;  to  all  cases  affecting  ambassadors,  other 
public  ministers  and  consuls;  to  all  cases  of  admiralty 
and  maritime  jurisdiction ;  to  controversies  to  which  the 
United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  states,  between  a  state  and  a  citizen  of 
another  state,  between  citizens  of  different  states,  between 
citizens  of  the  same  state  claiming  lands  under  grants  of 
different  states,  and  between  a  state  or  the  citizens 
thereof  and  foreign  states,  citizens,  or  subjects.  From  the 
clause  recited,  it  appears  that  the  judicial  power  of  the 


THE     SCIENCE     OF     GOVERNMENT.  229 

United  States  extends  to  all  the  matters  therein  enume- 
rated ;  consequently  the  judicial  power  of  the  United 
States,  in  relation  to  any  of  the  subjects  upon  which  it 
may  act,  whenever  it  is  exercised,  must  be  and  is  final 
and  conclusive.  If  it  extends  to  a  particular  matter  or 
case,  and  its  action  thereupon  or  therein  may  be  reviewed, 
examined,  or  controlled  by  another  sovereignty,  or  by 
the  action  of  any  other  department,  the  power  is  value- 
less, and  the  United  States  would  be  deprived  of  self-pro- 
tection, and  would  be  unable  to  execute  its  trusts. 
Although  the  judicial  power  of  the  United  States,  in  all 
matters  to  which  it  extends,  is  and  must  be  final  and  con- 
clusive, it  does  not  follow  that  the  courts  of  the  several 
states  may  not,  in  the  first  instance,  in  some  cases,  act 
upon  the  same  matters,  unless,  from  the  nature  of  the 
case,  its  jurisdiction  is  excluded  upon  the  ground  that 
the  matter  did  not  arise  within  the  local  jurisdiction  of 
any  state.  A  citizen  of  one  state  may  institute  a  suit 
against  a  citizen  of  another  state,  in  a  state  court,  and 
unless  it  be  transferred  under  a  law  of  the  United  States, 
as  in  some  instances  it  may  be,  the  state  court  has  juris- 
diction to  proceed,  notwithstanding  the  judicial  power  of 
the  United  States,  may,  under  its  constitution,  extend  to 
such  case.  An  ambassador,  although  entitled  to  the  pro- 
tection of  the  United  States  and  of  its  courts,  may  volun- 
tarily, if  he  will,  resort  to  a  state  court  for  redress  of  any 
wrong  done  to  him.  In  relation  to  some  other  cases 
named  in  the  clause,  the  jurisdiction  of  the  judicial  power 
of  the  United  States  is  exclusive,  from  the  nature  of  the 
subject-matter.  Causes  of  admiralty  and  maritime  juris- 
diction arising  upon  the  high  seas,  and  without  the  ter- 
ritorial limits  of  a  state,  must  be  instituted  in  the  courts 
of  the  United  States,  if  the  party  instituting  a  proceed- 
ing wishes  to  obtain  such  redress  as  courts  of  admiralty 
alone  are  competent  to  afford.     In  relation  to  some  of  the 


230  THE     SCIKNCK     OF     GOVERNMENT. 

cases  enumerated,  (in  the  clause  recited.)  the  supreme 
court  of  the  United  States  has  original,  in  others  it  has 
an  appellate,  or  supervisory  jurisdiction,  from  and  over 
other  courts  of  the  United  States.  In  some  of  the  cases 
^vhich  may  arise  coming  within  the  subjects  enumerated, 
in  courts  of  a  state,  provision  is  made  by  the  laws  of  the 
United  States,  to  transfer  them  to  a  court  of  the  United 
States,  before  any  hearing  upon  the  merits  shall  have 
been  had,  or  after  a  hearing  in  a  state  court,  to  remove 
them  by  writ  of  error  to  the  supreme  court  of  the  United 
States.  It  is  not  necessary,  and  would  not  be  useful,  for 
me  to  exhibit  these  matters  in  detail,  with  their  limita- 
tions, or  to  present  the  course  of  proceeding.  The  result 
is,  that  individuals  having  rights  growing  out  of  the  mat- 
ters enumerated,  by  pursuing  the  course  prescribed  by 
law,  may  have  them  finally  and  conclusively  adjudicated 
by  the  courts  of  the  United  States,  without  review  or 
examination  elsewhere. 

The  provision  to  which  reference  has  been  made  ex- 
hibits the  character  of  our  system,  and  may  well  be 
resorted  to  as  its  exponent.  It  exhibits  an  intention  to 
accomplish  several  important  purposes.  First.  The  sove- 
reignty of  the  United  States  depends  for  its  security  not 
upon  state  authority  or  state  courts,  but  upon  itself,  upon 
its  own  action.  The  clause  under  consideration  says,  the 
judicial  power  shall  extend  to  all  cases  arising  under  the 
constitution,  under  the  laws  of  the  United  States,  and 
to  cases  in  which  the  United  States  may  be  a  party.  It 
is  a  general  principle  of  law  applicable  to  every  system 
of  government,  that  it  is  and  shall  be  the  interpreter  of 
its  own  constitution,  of  its  own  law,  and  of  the  benefits 
resulting  from  or  conceded  by  its  institutions.  The  fede- 
ral government,  within  its  limit,  within  its  rightful  juris- 
diction, knows  no  other  government,  submits  to  no  other 
power.     In   accordance  with  this  general  principle,  it  is 


THE     SCIENCE     OF     GOVERNMENT.  231 

intrusted  with  the  keeping  of  its  own  supremacy,  with 
the  protection  and  assertion  of  all  rights  which  may  arise 
or  exist  under  its  constitution  and  laws,  and  also  of  the 
rights  which  the  United  States  may  have  as  a  party. 
Another  purpose  disclosed,  is  connected  with  the  foreign 
policy  and  relations  of  the  country.  All  matters  grow- 
ing out  of  or  appertaining  to  treaties,  ambassadors,  or 
other  public  ministers,  are  within  the  judicial  power  of 
the  United  States,  as  already  stated ;  and  thereby  uni- 
formity and  certainty  in  these  matters  are  obtained,  and 
the  country  is  protected  from  interposition  or  inade- 
quacy, or  want  of  faith  on  the  part  of  any  state  autho- 
rity. A  third  intent  is,  that  the  law  of  nations  and 
rights  dependent  thereupon  may  be  respected  and  ad- 
ministered by  the  courts  of  the  government,  which  is 
charged  with  an  adherence  to  and  maintenance  of  such 
rights,  by  itself  and  by  its  citizens,  and  by  the  residents 
of  the  United  States. 

A  fourth  and  important  purpose  is  manifested  in  the 
provision  which  extends  the  jurisdiction  of  the  judicial 
department  of  the  United  States  to  controversies  which 
may  arise  between  the  several  states  as  sovereignties. 
If  the  rights  of  boundary,  or  other  rights  which  may  be 
contested  between  two  states  were  to  be  left  to  the 
several  states  interested  for  determination,  they  might 
be  induced  to  resort  to  force,  and  our  system  would  end. 
Or  if  such  rights  were  to  be  determined  by  the  courts  of 
either  of  the  states  litigating  with  each  other,  or  by  the 
courts  of  a  disinterested  neighboring  state,  jealousy,  con- 
fusion, and  ill  feeling  would  arise.  As  these  matters  are 
deferred  to  the  judiciary  of  the  union,  the  several  states 
stand  as  equals,  and  their  dignity  and  self-respect  is  not 
impaired.  Many  such  cases  have  arisen  under  our  sys- 
tem ;  and  although  occasionally  storms  and  clouds  have 
appeared  in  the  distance,  sober  second  thought  has  pre- 


232  THE     SCIENCE     OF     GOVERNMENT. 

vailed,  and  the  mandates  of  the  supreme  court  of  the 
United  States  have  thus  far  been  carried  into  eflect  ^vith- 
out  colUsion  or  rupture  between  the  states,  or  between 
them  and  the  union.  A  similar  purpose  is  found  in  the 
provision  which  authorizes  citizens  of  different  states,  or 
citizens  of  the  same  state  claiming  grants  of  land  under 
different  states,  to  litigate  their  rights  in  the  courts  of 
the  United  States.  Another  purpose  exhibited  in  the 
clause  is,  a  desire  to  prevent  a  state  or  its  citizens  from 
doing  injustice  to  a  foreign  state,  or  to  the  citizens  or 
subjects  of  a  foreign  state. 

Soon  after  the  adoption  of  the  constitution,  it  was 
doubted  whether  a  state  could  be  sued  by  a  citizen  of 
another  state.  The  right  was  denied  by  many  persons 
of  ability ;  and  the  language  of  the  constitution  is'such, 
regarding  its  subject-matter,  (a  sovereign  state,)  that 
doubts  in  this  respect  might  well  and  fairly  have  been 
entertained.  The  language  is,  the  judicial  power  shall 
extend  to  controversies  between  a  state  and  citizens  of 
another  state.  Nothing  is  said  as  to  the  institution  of  a 
controversy  or  suit  by  a  state  ;  so  that  the  language,  in  its 
natural  and  broad  import,  applies  to  all  controversies  be- 
tween a  state  and  the  citizens  of  another  state.  It  was 
conceded  by  those  w^ho  took  a  narrow  view%  that  a  state 
might  commence  a  suit  against  a  citizen  of  another  state, 
but  it  was  assumed  that  it  could  not  be  sued  by  such 
citizen.  This  assumption  or  doubt  was  the  result  of  state 
dignity  and  state  pride.  In  a  case  instituted  against  the 
state  of  Georgia,  at  an  early  stage  of  our  constitu- 
tional history,  a  majority  of  the  supreme  court, 
adopting  the  ordinary  and  natural  import  of  the  words, 
without  reference  to  the  sovereign  authority  to  and 
upon  which  it  applied,  held,  that  a  state  might  be  sued- 
by  a  citizen  of  another  state.  This  decision,  generally, 
so  far  as  I   am  aware,  has  been  approved  by  the  legal 


THE     SCIENCE     OF     GOVERNMENT.  233 

mind.  To  obviate  the  supposed  inconvenience  and 
enormity  of  this  decision,  and  to  avoid  embarrassments 
which  it  was  supposed  might  arise,  the  constitution  was 
amended.  In  an  amendment  of  the  constitution  of  the 
United  States  upon  this  subject,  it  is  provided,  "  the  judi- 
cial power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity  commenced  or  pro- 
secuted against  one  of  the  United  States  by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any  foreign 
state.  This  amendment  prohibits  the  institution  of  legal 
proceedings  against  a  state,  by  a  citizen  of  another  state. 
If  a  state  institutes  a  suit  against  a  citizen  of  another 
state,  such  citizen,  notwithstanding  the  amendment,  may 
carry  the  case,  if  decided  against  him,  to  the  supreme 
court  of  the  United  States  for  final  adjudication.  As  the 
constitution  originally  existed,  a  foreign  state  or  sove- 
reignty having  a  legal  claim  against  any  one  of  the 
several  states,  arising  upon  bond  or  other  obligation  of  a 
state  for  the  payment  of  money  or  for  the  performance 
of  a  contract,  not  in  its  nature  political,  might  institute 
legal  proceedings  against  such  state,  in  the  supreme  court 
of  the  United  States.  The  amendment  of  the  constitu- 
tion prohibiting  the  institution  of  a  suit  against  a  state 
by  a  citizen  of  another  state,  or  by  a  citizen  or  subject  of 
a  foreign  state,  does  not  reach  the  case  of  a  suit  by  a 
foreign  sovereignty.  If  a  state  by  contract  becomes  in- 
debted to  a  foreign  government  or  sovereignty,  I  do  not 
perceive  any  reason  upon  which  to  say  such  foreign  gov- 
ernment cannot  assert  its  rights  against  such  state  by 
the  institution  of  legal  proceedings.  The  amendment, 
through  design  or  inadvertence,  does  not  extend  to  or 
exclude  such  case ;  no  such  suit  has  been  attempted,  and 
probably  may  not  be. 

Immediately  after  the  adoption  of  the  constitution,  in 
obedience  to  its  requirement,  congress  provided  for  the 

30 


234  THE    SCIENCE     OF     GOVERNMENT. 

organization  of  a  supreme  court  and  for  the  establish- 
ment of  inferior  courts,  distributing  the  jurisdiction,  so 
as  to  make  ample  provision  for  carrying  into  efibct  the 
design  and  powers  of  the  constitution.  In  some  instances, 
state  officers  have  voluntarily,  under  laws  of  the  United 
States,  aided  in  the  execution  of  such  laws.  State  officers 
cannot  be  required  to  perform  any  duty,  except  such  as 
may  be  conferred  upon  them  by  state  legislation.  Con- 
gress cannot  vest  any  portion  of  the  judicial  jDOwer  of 
the  United  States,  except  in  courts  ordained  and  estab- 
lished by  itself  By  an  act  j^assed  in  1789,  commonly 
known  as  the  judiciary  act,  the  judges  of  the  courts  of 
the  United  States  w^ere  vested  with  ample  means  to  exer- 
cise the  jurisdiction  conferred  upon  them.  The  existence 
of  two  judicial  departments  exercising  jurisdiction  over 
the  same  territory  and  persons,  may  appear  inconsistent 
or  incompatible  with  a  natural  and  regular  system.  The 
same  answer  occurs  w'hich  has  been  applied,  and  is  appli- 
cable to  the  existence  of  two  legislative  departments, 
acting  under  different  sovereignties  and  circumstances, 
for  different  purposes. 

As  has  been  suggested,  the  judicial  department  of  the 
United  States  has  been  constructed  so  as  to  secure  certain 
important  and  national  objects,  w4iicli  are  not  merely 
local  or  exclusively  applicable  to  the  condition  or  exi- 
gencies of  a  particular  state.  It  is  not  difficult  to  under- 
stand an  arrangement  by  which  one  court  may  be  au- 
thorized to  determine  a  particular  class  of  cases  or  con- 
troversies, and  another  court  be  empowered  to  adjudicate 
in  relation  to  another  and  distinct  class  of  cases.  Upon 
the  same  principle,  the  judiciary  of  the  United  States 
may  be  intrusted  with  the  original  and  exclusive,  or  the 
final  and  conclusive  jurisdiction  of  certain  matters,  at  the 
same  time  that  other  matters  are  deferred  to  the  control 
and  disposition  of  a  state  judiciary.     The  science  of  law, 


THE     SCIENCE     OF     GOVERNMENT.  235 

the  principles  of  right  and  wrong,  independent  of  express 
regulation  or  statute  provision,  is  and  are  the  same  in 
every  free  or  constitutional  government,  and  in  every 
intelligent  judiciary.  To  secure  this  uniformity  of  science, 
of  right  and  wrong,  in  and  through  the  relations  of  the 
citizens  of  the  United  States,  to  the  system  of  govern- 
ment which  they  have  adopted,  the  laws  of  the  United 
States  have  made  ample  provision.  The  judiciary  act,  to 
which  reference  has  been  made,  provides,  that  "  the  laws 
of  the  several  states,  except  where  the  constitution,  trea- 
ties, or  statutes  of  the  United  States  shall  otherwise 
require  or  provide,  shall  be  regarded  as  rules  of  decision, 
in  trials  at  common  law  in  courts  of  the  United  States,  in 
cases  where  they  apply."  This  provision  relates  to  suits 
and  controversies  arising  at  common  law,  in  respect  to 
which  the  states  may  rightfully  legislate  within  certain 
limits.  A  contract  may  be  made  by  citizens  of  Massa- 
chusetts, in  conformity  with  the  .laws,  and  to  be  performed 
within  the  territory  of  the  commonwealth.  Such  con- 
tract, so  far  as  the  rights  which  result  or  flow  therefrom, 
is  to  be  determined  upon  the  same  principles,  when  dis- 
cussed in  the  courts  of  the  United  States,  as  when 
discussed  in  a  state  court.  More  than  this,  a  statute  of 
any  one  state  rightfully  and  constitutionally  enacted, 
means  in  every  other  state  of  the  union,  and  in  the  courts 
of  the  United  States  the  same ;  and  has  the  same  force 
and  effect  as  the  highest  judicial  tribunal  of  the  state,  in 
which  it  may  have  been  enacted,  may  determine.  In 
other  words,  the  law  of  a  particular  sovereignty  or  gov- 
ernment, must  be  determined  by  such  sovereignty  or 
government.  In  one  case  which  arose  before  the  supreme 
court  of  the  United  States,  a  state  statute  was  the  subject 
of  construction ;  the  court,  in  pursuance  of  the  provision 
in  the  laws  of  the  United  States  to  which  reference  has 
been  made,  and  in  harmony  with  admitted  principles  of 


236  THE     SCIENCE     OF     GOVEKNMENT. 

jurisprudence,  adopted,  as  the  law  of  the  court,  a  con- 
struction which  the  supreme  court  of  a  state  had  given 
of  its  own  statute. 

Subsequently  the  same  statute  was  presented  in  another 
case  before  the  supreme  court  of  the  United  States,  and 
in  the  meantime,  the  same  statute  had  been  presented  to 
the  state  court  a  second  time,  for  construction,  and  its 
foruier  opinion  was  rejected  as  erroneous,  and  a  new  and 
different  construction  was  adopted  as  the  true  import  and 
meaning  of  the  statute ;  which  last  construction  was 
adopted  by  the  supreme  court  of  the  United  States  as 
the  true  exposition,  in  deference  to  the  judgment  of  the 
state  court.  Other  cases  arise  which  are  controlled  by 
the  constitution,  by  the  treaties,  or  by  the  laws  of  the 
United  States ;  these  are  to  be  decided  at  all  times  and 
in  all  courts  and  in  every  court  in  the  country,  in  which 
they  may  be  discussed,  in  conformity  with  the  opinion  of 
the  supreme  court  of  the  United  States,  if  it  can  be 
ascertained ;  and  if  no  opinion  has  been  given  by  that 
court,  they  are  to  be  determined  upon  principles  which 
it  may  be  supposed  that  court  would  adopt,  if  the  ques- 
tion presented  had  arisen  before  it.  Another  class  of 
cases  may  arise,  dependent  for  determination  upon  gene- 
ral principles  of  jurisprudence  as  understood  by  jurists, 
judges,  and  legal  writers.  In  such  cases  the  judiciary  of 
the  United  States  will  be  governed  by  its  own  intelli- 
gence and  knowledge  of  legal  principle,  and  will  defer 
only  to  the  opinions  or  judgments  of  state  courts,  as  the 
opinions  of  eminent  and  learned  men,  entitled  to  such 
respect  and  consideration,  and  only  such,  as  their  reason- 
ing may  produce  upon  other  minds.  The  judicial  depart- 
ment of  the  United  States  extends  also  to  cases  in  equity, 
which  is  a  branch  or  department  of  legal  science,  of  juris- 
prudence not  dependent  upon  any  written  law,  or  upon 
any  arbitrary,  fixed  principles,  which  do  not  admit  of  any 


THE     SCIENCE     OF     GOVERNMENT.  237 

diminution  or  abatement.  Equity,  however,  cannot  do 
away  with  or  control  positive  written  law,  but  it  may 
restrain  and  prohibit,  under  some  circumstances,  the  appli- 
cation of  written  law  to  a  particular  case.  This  branch 
of  law  has  been  the  subject  of  much  reproach,  which  it 
is  not  my  province  to  repel,  except  so  far  as  an  illustra- 
tion of  its  operation  may  have  such  effect. 

It  may  be  essential  to  the  rights  of  an  individual  to 
prove  a  certain  state  of  facts,  or  the  existence  or  execu- 
tion of  a  paper,  of  which  he  has  at  law  no  means  of 
proof,  no  evidence  at  his  hand ;  these  facts,  or  the  execu- 
tion of  the  paper  are  known,  to  his  adversary,  to  the  party 
having  an  interest  to  conceal  the  facts  or  to  suppress  the 
paper;  the  individual  wishing  the  proof  may,  through 
the  instrumentality  and  aid  of  a  court  of  equity,  resort 
to  the  party  opposed,  make  an  appeal  to  his  conscience, 
and  compel  him  upon  oath  to  answer.  In  this  way  in- 
justice has  been  prevented,  and  right  has  prevailed  in 
many  cases.  Individuals  may  enter  into  a  written  con- 
tract, which  through  inadvertence  and  mistake  may  con- 
tain a  provision  which  neither  party  designed  to  have  in- 
serted ;  upon  proof  of  such  mutual  mistake,  a  court  of 
equity  will  reform  the  instrument,  and  make  it  what  the 
parties  thereto  originally  designed.  From  this  brief  state- 
ment of  the  character  of  equity  as  a  part  of  our  system 
of  jurisprudence,  it  will  be  perceived  that  the  courts  of 
the  United  States,  in  adjudicating  upon  cases  in  equity, 
must  resort  to  the  science  for  their  guide,  and  not  to  state 
courts,  some  of  which  have,  and  some  have  not,  equity 
jurisdiction.  Courts  of  equity  do  not  afford  relief,  in 
cases  in  which  the  jurisdiction  of  the  ordinary  courts  of 
common  law  is  adequate  to  attain  the  ends  of  justice  by 
affording  ample  remedy.  The  judiciary  of  the  United 
States,  in  equity  cases,  proceeds  in  conformity  with  the 
principles  of  equity,  as  known  to,  and  as  administered  in, 


238  THE     SCIENCE     OF     GOVERNMENT. 

courts  of  equity ;  and  as  there  is  no  court  of  equity  to 
which  the  supreme  court  of  the  United  States  can  resort, 
as  an  authoritative  tribunal,  and  as  it  ^voukl  be  indeco- 
rous to  resort  to  a  court  of  any  particular  state,  in  j^re- 
ference  to,  and  in  exclusion  of,  the  court  of  any  other 
state,  equally  respectable  in  the  theory  of  our  system, 
the  principles  of  the  English  court  of  equity  have  been 
adopted,  except  so  far  as  those  principles  may  be  inappli- 
cable to,  or  inconsistent  with,  our  institutions.  The  judi- 
ciary of  the  United  States  extends  to  all  cases  of  admi- 
ralty and  maritime  jurisdiction.  The  state  courts  do  not 
act  as  courts  of  admiralty,  and  the  courts  of  the  United 
States,  in  exercising  its  admiralty  and  maritime  jurisdic- 
tion, look  to  the  courts  of  admiralty  of  other  countries 
and  to  the  law  of  nations,  for  the  principles  by  which 
their  action  and  adjudications  are  governed,  unless  re- 
strained by  some  statute. 

The  imposition  of  this  jurisdiction  upon  the  courts  of 
the  federal  sovereignty,  shows  the  sagacity  of  those  who 
framed  our  system,  and  exhibits  the  competency  of  the 
system  to  answer  the  purpose  for  which  the  union  was 
formed.  Cases  of  admiralty  and  maritime  jurisdiction 
arise  frequently  in  time  of  war,  and  out  of  matters  de- 
pendent entirely  upon  international  law,  or  upon  the 
force  and  efiect  of  treaties.  These  cannot  safely  be  in- 
trusted to  thirty-one  or  more  different  jurisdictions,  inde- 
pendent of  each  other,  occupying  a  continuous  territory, 
although  composed  of  people  of  similar  interests  and 
habits,  modified  slightl}'  by  locality  or  climate.  The 
judgments  of  courts,  proceeding  according  to  the  law  of 
nations,  having  jurisdiction  of  the  subject-matter  to  the 
extent  of  the  jurisdiction  actually  exercised,  are  binding, 
and  to  be  regarded  upon  and  by  all  other  courts.  It  can- 
not, therefore,  fail  to  be  perceived,  that  such  cases  should 
have  been  as  they  have  been,  conferred  upon  the  federal 
judiciary. 


THE     SCIENCE     OF     GOVERNMENT.  239 

It  is  frequently  said,  that  the  United  States  have  no  com- 
mon law.  In  one  sense,  the  remark  is  undoubtedly  true. 
The  several  states  may  have  a  common  law,  composed 
of  usage  and  custom,  peculiar  to  the  state  in  which  it 
exists.  It  cannot,  therefore,  be  said  that  the  judiciary  of 
the  United  States  shall  in  all  cases  adopt  the  common 
law  of  any  particular  state,  to  the  exclusion  of  that  of 
other  states.  The  judiciary  of  the  United  States,  how- 
ever, may  and  it  will  adopt,  when  not  controlled  by  any 
constitution,  treaty,  or  statute,  those  common  law  princi- 
ples, which  may  be  a  result  of,  or  deduction  from,  the 
highest  attainable  point  of  human  reason,  chastened  and 
controlled  by  integrity,  by  principles  of  justice  and  of 
right. 

The  judicial  department  of  the  United  States  exhibits 
another  peculiarity  or  incident  resulting  from  our  system, 
composed  as  it  is  of  two  sovereignties.  The  forms  of 
writs,  executions,  and  processes,  in  and  from  the  courts  of 
the  United  States,  except  their  style,  and  the  forms  and 
modes  of  proceeding  in  suits  at  common  law,  in  these 
courts,  are  and  shall  be  the  same  in  each  state  respective- 
ly as  are  used  in  the  supreme  court  thereof  A  provision 
to  this  effect  was  made  by  Congress  in  1789,  and  applied 
only  to  the  states  which  were  then  members  of  the  union, 
and  to  the  terms  and  mode  of  proceeding  then  used  and 
existing  in  the  state  courts. 

In  1828,  and  subsequently,  provision  was  made  in  the 
statutes  of  the  United  States  for  extending  the  regulation 
to  the  new  states,  and  to  conform  to  the  changes  which 
the  several  states  in  this  particular  had  made  since  1789. 
The  object  of  this  legislation  is,  to  procure  uniformity 
in  the  course  and  mode  of  proceeding  in  the  national 
and  state  judiciary,  and  thereby  avoid  occasions  for  dis- 
trust or  uneasiness  which  might  otherwise  occur.* 

*  An  opinion  is  prevalent, more  or  less  extensive,  among  the  legal  profession, 


240  THE    vSCIENCE     OF     aOVERNMENT. 

The  judges  of  the  supreme  court  of  the  United  States 
hold  the  circuit  courts  in  the  several  states,  and  thus 
have  an  opportunity  to  learn  the  practical  effect  and 
Avorking  of  the  law  and  of  the  system.  They  become 
familiar  with  the  business  operations  of  the  community, 
with  the  habits  and  thoughts  of  the  people  upon  which 
the  law  operates,  and  for  whose  protection  it  is  estab- 
lished. By  means  of  this  observation  and  intercourse, 
the  judges  acquire  a  comprehensive  knowledge  of  men 


that  a  party  who  institutes  a  suit  in  the  courts  of  the  United  States,  may  have 
greater  right  than  he  can  by  instituting  his  suit  in  a  state  court.  This  is  errone- 
ous, and  lias  no  foundation.  It  is  a  general  and  undoubted  principle  of  juris- 
prudence, that  a  party  who  institutes  a  suit  in  a  foreign  country,  must  be  con- 
tent to  ii'ceivc  such  law  and  such  remedy  as  the  courts  of  the  countiy  in  which 
he  liti<Tates  nmy  be  able  or  may  be  disposed  to  extend  to  him.  The  reason  of 
■which  is,  that  the  party  in  the  case  supposed,  proceeds  not  as  matter  of  right, 
but  upon  the  comity  of  the  country  whose  courts  he  may  enter.  This  principle 
cannot  be  appUed  to  citizens  of  the  several  states  of  the  American  union. 
A  citizen  of  one  state  who  has  a  claim  against  a  citizen  of  another,  and  resorts 
to  the  state  court  of  the  state  of  which  the  latter  is  a  citizen  or  a  resident,  does 
so  as  matter  of  right,  under  the  constitution  of  the  United  States,  and  not  as 
matter  of  grace ;  he  is,  therefore,  entitled  to  the  same  rights  as  he  might  have, 
if  he  had  instituted  his  suit  in  a  court  of  the  United  States.  The  several  state 
courts  are  bound  by  the  constitution  and  laws  of  the  United  States  to  the 
same  extent  as  the  courts  of  the  United  States  are ;  and  if  a  suitor  has  any 
peculiar  protection,  immunity,  or  right  under  the  constitution,  treaties,  or  laws 
of  the  United  States,  a  state  court  is  bound  to  give  effect  thereto.  Tliis  is  ap- 
plicable to  cases  in  which  a  state  court  may  exercise  jurisdiction,  and  not  of 
course  to  admiralty  and  maritime  cases,  or  to  other  cases  in  which  the  state 
courts  have  no  power  to  afford  the  remedy  peculiar  to  courts  of  admiralty,  or 
to  some  other  court  exercising  a  peculiar  mode  of  remedy.  It  is  also  a  general 
principh;  of  jurisprudence,  that  the  force  and  effect  of  a  contract  is  to  be  ascer- 
tained from  and  by  the  law  of  the  country  in  which  it  may  have  been  made, 
and  if  legal  there,  is  legal  in  every  other  country.  A  contract,  however,  which 
may  be  legal  where  made,  will  not,  in  all  cases,  be  enforced  in  every  other 
countrj'.  A  promissory  note  may  be  legally  made  in  any  one  of  the  several 
states  in  which  slavery  is  allowed,  as  and  in  payment  of  the  purchase-money  for  a 
slave.  If  such  note  should  be  put  in  suit  in  any  of  the  courts  of  common  law  of 
England,  the  court  might  well,  and  probably  would,  say,  it  is  against  good 
morals,  and  a  prejudice  to  our  institutions  to  enforce  such  contract,  and  there- 
fore and  thereupon  refuse  to  enforce  it.  If  such  note  should  be  put  in  suit  in 
the  state  court  of  a  state  in  this  union  in  which  slavery  is  not  allowed,  no  such 
answer  or  refusal  to  enforce  the  contract  could  be  made. 


THE     SCIENCE     OF     GOVERNMENT.  241 

and  things,  which  is  essential  to  a  proper  discharge  of 
the  trusts  confided  to  them,  which  cannot  be  acquired 
from  books.  The  judiciary  of  the  United  States  is  clothed 
with  ample  power  to  aid  and  uphold  the  government  in 
the  collection  of  debts  due  to  it.  It  is  provided  by  law, 
"  that  all  writs  of  execution  upon  any  judgment  obtained 
for  the  use  of  the  United  States  in  any  of  the  courts  of 
the  United  States  in  one  state,  may  run  and  be  executed 
in  any  other  state,  or  in  any  of  the  territories  of  the 
United  States,  but  shall  be  issued  from  and  made  return- 
able to  the  court  in  which  the  judgment  was  obtained.  It 
has  also  very  extensive  power  and  authority,  which  may  be 
used  in  favor  of  individual,  of  private  right.  Process  for 
witnesses  who  may  be  required  to  attend  a  court  of  the 
United  States  in  any  district  thereof,  may  run  into  any 
other  district,  when  their  attendance  is  required  in  crimi- 
nal causes.  In  civil  causes,  the  attendance  of  witnesses 
who  do  not  reside  at  a  greater  distance  than  one  hundred 
miles  from  the  place  of  trial  may  be  compelled,  although 
they  reside  in  a  state  or  district  other  than  that  in  which 
a  trial  is  to  be  had.  The  judiciary  of  the  United  States 
extends  to  all  crimes  and  offences  against  the  constitu- 
tion, the  treaties,  or  laws  of  the  United  States ;  to  offences 
which  may  occur  upon  territory,  over  which  the  United 
States  have  exclusive  jurisdiction ;  to  offences  on  the 
high  seas,  without  the  local  limits  of  a  state,  which  may 
be  committed  on  board  an  American  ship ;  to  offences 
against  the  law  of  nations,  committed  by  its  citizens,  or 
by  persons  rightfully  brought  within  the  United  States. 
The  constitutional  provisions,  in  relation  to  offences 
known  to  the  laws  of  the  United  States,  are  well  calcu- 
lated to  insure  civil  liberty,  and  to  preserve  inviolate  the 
humanity  and  rights  which  is  and  are  due  to  those 
accused.  The  constitution  of  the  United  States  provides, 
that  "  the  privilege  of  the  writ  of  Jmheas  corpm  shall  not 

31 


242  THE     SCIKNCE     OF     GOVERNMENT, 

be  suspended,  unless  wlien,  in  cases  of  rebellion  or  inva- 
sion, the  public  safety  may  require  it.  The  trial  of  all 
crimes,  except  in  cases  of  impeachment,  shall  be  by  jury, 
and  such  trial  shall  be  held  in  the  state  where  the  said 
crimes  shall  have  been  committed  ;  but  ^vhen  not  com- 
mitted within  any  state,  the  trial  shall  be  at  such  place  or 
places  as  the  congress  may  by  law  have  directed.  The 
power  and  danger  of  oppression  on  the  part  of  the  gov- 
ernment, in  relation  to  political  oflfences,  is  restrained  and 
prevented.  In  arbitrary  or  absolute  governments,  an 
accusation  of  treason  is  an  easy  and  dangerous  method 
of  suppressing  inquiry  into  the  conduct  of  government, 
and  of  imposing  upon  those  suspected  of  hostility  to  its 
measures,  imusual  and  imwarrantable  penalties.  In  our 
system,  this  is  avoided.  Treason  is  defined  l)y  the  con- 
stitution, which  says,  treason  against  the  United  States 
shall  consist  only  in  levying  war  against  them,  or  in 
adhering  to  their  enemies,  giving  them  aid  and  comfort. 
No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court.  The  congress  shall  have  power 
to  declare  the  punishment  of  treason,  but  no  attainder  of 
treason  shall  work  corruption  of  blood  or  forfeiture,  ex- 
cept during  the  life  of  the  person  attainted.  This  provi- 
sion results  from  an  enlarged  comprehension  of  the  true 
character  and  purpose  of  civil  liberty,  and  an  unwavering 
attachment  to  its  support  and  regulation  by  law.  To 
extend  and  sustain  the  enlightened  policy  exhibited  in 
the  constitution  by  the  provisions  referred  to,  additional 
provisions  were  adopted  by  amendment. 

in  the  articles  of  amendment  it  is  said,  "  the  right  ol" 
the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects  against  unreasonable  searches  and  seizures, 
shall  not  be  violated."  Several  other  similar  provisions, 
designed  to  uphold,  under  all  circumstances,  security  of 


THE     SCIENCE     OF     GOVERNMENT.  243 

person  and  personal  rights,  are  also  inserted.  The  legis- 
lation of  congress  in  the  establishment  of  the  federal 
judiciary  has  clothed  it  with  every  power  and  facility, 
which  can  be  required  to  carry  into  effect  the  principles 
of  the  constitution.  The  character  of  the  state  judiciary 
may  be  inferred  from  that  of  the  federal  government. 
The  federal  judiciary  is  for  national  purposes,  for  pur- 
poses arising  from  and  connected  with  the  union.  The 
state  judiciary  is  for  local,  for  state  purposes.  Each  pur- 
sues its  several  and  rightful  jurisdiction,  independent  of 
the  other,  as  a  means  or  instrument  by  which  the  trusts 
of  the  sovereignty  to  which  it  belongs  are  ascertained, 
defined,  and  made  available  to  the  security  and  progress 
of  society.  The  state  judiciary  has  power  commensurate 
with  the  jurisdiction  of  the  state.  It  pronounces  judg- 
ment upon  the  force  and  effect  of  the  state  constitution, 
and  of  the  laws  of  the  state,  written  and  unwritten, 
including  its  local  usages  and  customs,  and  applies  them 
to  the  rights  of  the  state  government,  and  to  the  rights, 
duties,  and  obligations  of  its  citizens,  limited  only  in  these 
particulars,  by  the  restrictions  contained  in  the  constitu- 
tion of  the  United  States,  designed  to  uphold  the  union. 
It  has  a  supervisory  power  and  control  over  municipal 
corporations  and  officers,  and  others  intrusted  with  pubUc 
authority ;  and  generally  it  determines  the  rights,  public 
and  private,  of  the  community.  The  judicial  department 
of  the  state  government  operates  extensively  and  con- 
stantly upon  all  the  relations  of  life.  It  is  eminently  the 
department  to  which  the  citizen  recurs  for  the  protection 
and  enjoyment  of  his  civil  rights.  The  rights  of  persons, 
character,  and  property,  the  incidents  resulting  from  con- 
tract, are  generally  ascertained  and  enforced  by  the  state 
judiciary.  They  are  exclusively  and  conclusively  deter- 
mined by  this  department  in  all  cases,  and  matters  not 


244  THE     SCIENCE     OF     GOVERNMENT. 

conferred  upon  the  federal  government  for  the  purposes 
of  the  union.  The  execution  of  wills,  the  acquisition  of 
land,  the  mode  in  which  the  title  to  personal  estate  may 
be  acquired  or  lost,  are  matters  of  state  legislation,  and 
whenever  they  may  be  the  subject  of  judicial  inquiry  it  is 
had,  ordinarily  and  generally,  in  a  state  court.  The  judicial 
department  of  the  several  states,  in  its  power  and  pur- 
pose, is  the  same  substantially  in  every  state.  Its  organ- 
ization and  construction  is  not  uniform,  each  state  adopt- 
ing such  distribution  of  jurisdiction  and  mode  of  proceed- 
ing as  may  be  convenient  or  satisfactory  to  itself.  In 
every  state,  there  is  a  tribunal  which  exercises  the  final 
control  over  all  other  state  courts  and  judicial  officers. 
This  court  of  last  resort  is  in  some  of  the  states  designa- 
ted the  court  of  errors,  or  the  court  of  appeals ;  in  other 
states  it  is  designated  the  supreme,  or  the  superior  court. 
In  some  of  the  states,  the  highest  judicial  tribunal  of  the 
states  passes  upon  questions  of  law,  originating  or  arising 
in  courts  of  an  inferior  jurisdiction,  and  has  no  jury  in 
attendance  as  a  part  of  its  organization.  In  other  states, 
the  highest  court  passes  upon  questions  of  law,  and  also 
through  the  aid  of  a  jury  ascertains  and  passes  upon  the 
facts.  All  crimes  and  offences  against  the  sovereignty  or 
laws  of  a  state,  are  passed  upon  and  punished  by  the  state 
judiciary.  The  judicial  officers  of  the  several  states, 
especially  the  judges  of  the  higher  courts,  have  generally 
heretofore  held  their  offices  during  good  behavior,  and 
by  appointment  of  the  executive.===  The  legislative  and 
executive  departments  have  a  right  to  call  upon  the 
judiciary  for  its  opinion  upon  important  questions  of 
public  concernment,  and  which  do  not  relate  to  the  pri- 


*  In  the  opinion  of  the  writer  no  other  tenure  of  office,  or  mode  of  appoint- 
ment, is  judicious  or  safe. 


THE    SCIENCE     OF     GOVERNMENT.  245 

vate  interests  of  individuals  litigating  before  the  judicial 
tribunals  *  In  the  several  states  the  trial  by  jury  con- 
stitutes a  part  of  the  judicial  department,  and  the  parties 
who  have  recourse  to  this  department  of  the  government 
for  the  ascertainment  and  assertion  of  their  rights,  gene- 
rally, are  entitled  to  the  interposition  of  a  jury,  which, 
under  instructions  from  the  court,  determine  the  question 
or  questions  of  fact,  which  may  be  in  contestation 
between  the  parties.f  The  mode  of  selecting  a  jury  is 
prescribed  by  law.  The  selection  is  accomplished  through 
the  instrumentality  of  public  officers,  under  regulations 
designed  to  secure  impartiality  in  the  choice.  In  crim- 
inal and  in  civil  causes,  those  whose  rights  are  to  be 
passed  upon,  may,  upon  showing  legal  cause  of  objection, 
have  one  or  more  of  the  jury  set  aside.  In  some  criminal 
causes  the  party  accused  may  set  aside  a  prescribed  num- 
ber of  the  jury,  without  assigning  any  reason  or  cause 
of  objection.  This  immunity  is  conceded  upon  the 
ground  that  every  party  has  a  right  to  a  fair  and  impar- 
tial trial,  and  to  some  extent,  as  a  matter  of  humanity,  is 
allowed  to  select  his  peers,  by  whom  his  acts  are  to  be 
passed  upon. 

The  courts  of  a  state  are  courts  of  general  jurisdiction, 
and  the  presumption  and  intendment,  in  all  cases  before 
them,  is  in  favor  of  their  jurisdiction ;  and  this  intend- 
ment prevails  until  the  contrary  or  a  want  of  jurisdiction 


*  This  is  inexpedient ;  the  government  should  rely  for  counsel  upon  all  legal 
questions  upon  its  attorney-general,  or  other  law  officer. 

f  Many  politicians  and  some  practitioners  at  the  bar,  have  contended  that 
the  jury  in  criminal  cases,  are  and  should  be  judges  of  the  law  so  well  as  of  the 
fact.  This  is  not  so,  and  never  can  be,  with  safety  to  the  community.  A 
learned,  educated  individual,  whose  life  has  been  devoted  from  early  youth  to 
mature  manhood,  to  the  acquisition  of  legal  knowledge,  is  more  competent  to 
unfold  the  science  of  law  than  any  man  not  so  educated  can  be. 


246  THE     SCIENCE     OF     GOVERNMENT. 

is  shown.  The  courts  of  the  United  States  are  courts  of 
limited,  although  not  inferior  jurisdiction,  and  their  juris- 
diction must  be  shown,  must  appear  of  record.  The  state 
judiciary  has  the  exclusive  power  of  determination  as  to 
the  import  and  effect  of  its  constitution,  as  has  already 
been  stated,  and  must  say  whether  a  state  statute  is  or  is 
not  in  conformity  with  the  state  constitution  ;  and  no 
other  department  or  tribunal  can  so  say,  or  rightfidly 
pass  upon  the  question. 

I  have  presented  a  general  outline  of  the  judicial  de- 
partments of  the  federal  and  of  the  state  sovereignty. 
It  has  not  been  my  purpose  to  discuss  any  particular 
branch  of  jurisprudence,  or  to  exhibit  in  detail  the  entire 
machinery  of  the  departments  considered.  My  intent  is, 
to  present  for  your  consideration  certain  prominent  re- 
sults or  deductions,  which  may  be  made  from  an  analysis 
of  the  departments  to  which  reference  has  been  made. 
One  prominent  feature  consists  in  a  distribution  of  juris- 
diction. The  courts  of  the  United  States  and  of  the  sev- 
eral states,  are  classified ;  each  having  its  particular  class 
of  cases,  or  department  of  jurisdiction.  Each  sovereignty, 
the  federal  and  the  state,  having  one  court,  exercising  a 
general  supervision  and  control  over  all  other  courts  of 
the  same  sovereignty.  Another  feature  consists  in  a  di- 
vision of  power,  W' hich  is  two-fold,  one  derived  from  a  divi- 
sion of  government,  from  the  establishment  of  two  sove- 
reignties ;  the  other  from  the  creation  and  division  of  de- 
partments. This  division  of  department  is  seen  in  the 
judiciary,  by  the  establishment  of  judges  to  determine 
the  law,  of  a  jury  to  determine  the  fact.  The  judicial 
department,  as  I  have  endeavored  to  present  it,  shows 
the  same  theory,  the  same  system,  the  same  science  of 
government,  which  are  shown  in  the  legislative  depart- 
ment.    This  theorj^,  this  system,  this  science,  consists  in 


THE     SCIENCE     OF     GOVERNMENT.  247 

the  establishment  of  mternal  political  and  social  institu- 
tions ;  of  a  distribution  and  division  of  power ;  in  the 
cooperation  of  the  people  in  the  management  of  these 
institutions,  and  in  the  execution  of  the  trusts  confided 
to  government. 


LECTURE    IX. 


REVENUE.— TARIFF.— FREE  TRADE.- PUBLIC  LANDS  —  TERRITORIAL   GOVERNMENTS.— 
THE  ADMISSION  OF  NEW  STATES.  — THE  INDIAN  TRIBES. 


The  system  of  government  which  exists  in  the  United 
States,  is  invested  with  every  supposed  essential  capacity. 
A  most  important  power  is  found  in  the  right  of  impos- 
ing taxes  or  duties  for  its  support,  and  for  the  execution 
of  all  the  powers  with  which  it  is  intrusted.  The  power 
of  taxation  is  difficult,  and  often  dangerous,  to  the  gov- 
ernment by  which  it  is  applied.  The  powers  of  govern- 
ment w^hen  exercised  imperceptibly,  or  upon  matters 
which  do  not  operate  upon  the  avocations  of  the  citizen, 
so  as  to  impede  his  pursuits  or  plans,  are  not  the  subject 
of  general  discussion.  Men  are  accustomed  to  contribute 
indirectly,  from  their  private  resources,  to  many  purposes 
designed  to  promote  the  improvement  of  society  and  of 
individuals,  sums  of  money  which  they  would  not  expend 
for  the  same  purpose  directly.  Taking  advantage  of  this 
peculiarity  of  the  human  mind,  fairs  and  similar  schemes, 
in  themselves  of  no  value,  are  resorted  to  as  the  means 
of  obtaining  money  for  purposes  which  are  worthy  and 
important.  Government  and  political  associations  are  ac- 
customed to  avail  of  this  peculiarity,  so  far  as  possible,  in 
the  selection  of  means,  by  which  to  obtain  an  adequate 
revenue.     They  resort,  as  a  consequence,  to  indirect  tax- 

32 


250  THE     SCIENCE     OF     GOVERNMENT. 

ation,  whenever  such  method  can  be  made  successful.  In 
this  respect,  the  federal  government  has  ample  power,  by 
recourse  to  direct  and  indirect  taxation. 

The  constitution  of  the  United  States  provides,  that 
"  the  congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay  the  debts  and  provide 
for  the  common  defence  and  general  welfare  of  the  United 
States ;  but  all  duties,  imposts,  and  excises,  shall  be  uni- 
form throughout  the  United  States."  This  clause  confers 
amj^le  power  for  the  accomplishment  of  the  limited  and 
legitimate  duties  of  the  federal  sovereignty.  It  has,  how- 
ever, been  the  subject  and  the  occasion  of  different  and 
opposing  political  opinions.  On  one  side,  the  words  which 
authorize  congress  to  provide  for  the  common  welfare  of 
the  United  States,  have  been  relied  upon  as  conferring 
an  almost  unlimited  power.  Under  a  supposed  protec- 
tion derived  from  these  words,  considered  without  refer- 
ence to  the  connection  in  which  they  are  found,  schemes  of 
enlarged  internal  improvement  have  been  invented,  and, 
in  some  instances,  have  succeeded.  Some  of  those  who 
have  advocated  such  schemes,  seem  to  have  forgotten  for 
the  moment,  that  the  federal  sovereignty  is  one  of  limited 
powers,  designed  and  conferred  for  certain  defined  pur- 
poses. They  have  also  disregarded  the  well  settled  prin- 
ciples of  construction,  which  must  be  applied  to  an  ex- 
press grant  for  a  specific  purpose.  In  such  case,  ordina- 
rily, general  words  Avhich  may  be  found  are  not  designed 
to  enlarge  the  grant,  or  extend  it  to  any  purpose  not  im- 
mediately connected  with,  and  essential  to,  its  subject. 
Other  politicians,  looking  at  the  system,  rightfully  in  this 
respect,  as  one  of  limited  jurisdiction,  have  insisted  upon 
a  close,  strict  construction,  forgetting  the  purpose  of  the 
system,  and  disregarding  the  rules  of  construction  appli- 
cable to  every  written  document.  Both  of  these  views 
are  unsound  and  inconsistent  with  the  true  theory.     The 


THE    SCIENCE     OF     GOVERNMENT.  251 

clause  to  wliich  reference  has  been  made,  so  far  as  judi- 
cial authority  and  the  opinion  of  constitutional  lawyers 
are  to  be  relied  upon,  is  a  grant. of  the  power  of  taxation, 
adequate  to  the  express  grants  and  duties  conferred  and 
imposed  upon  the  federal  sovereignty ;  and  the  general 
words  used  are  designed  to  prevent  a  close,  technical, 
rigid  construction  of  the  words  used,  uninfluenced  by  the 
purpose.  The  federal  sovereignty  has,  on  several  occa- 
sions, resorted  to  direct  taxation  ;  this  has  been  in  conse- 
quence of  extraordinary  demands  upon  the  government, 
growing  out  of  war.  The  people  have  submitted,  not 
however  with  much  grace,  inasmuch  as  such  taxation  has 
always  produced  in  the  public  mind  disquiet,  uneasiness, 
and  complaint  against  the  government.  With  few  ex- 
ceptions, the  federal  government  has  been  maintained  by 
indirect  taxation,  by  the  imposition  of  duties  upon  pro- 
perty imported  from  foreign  countries.  In  this  way, 
every  individual  who  uses  an  article  of  foreign  growth  or 
manufacture,  pays  ordinarily  from  twenty  to  fifty  per 
cent,  of  the  cost  of  the  article,  for  the  support  of  govern- 
ment, and  in  some  instances  a  much  greater  per  cent. 
These  payments  are  readily  made,  because  the  purchaser 
of  an  article  rarely  enters  into  a  computation  of  the  ele- 
ments or  details  which  constitute  the  price  of  an  article, 
which  he  may  require,  or  may  choose  to  buy. 

The  state  sovereignty  is  also  clothed  with  the  power 
of  taxation.  It  is,  however,  a  limited  power,  which  can- 
not rightfully  be  exercised,  except  so  far  as  the  purpose 
and  duty  of  the  government,  fairly  and  reasonably  ascer- 
tained from  an  examination  of  its  constitution,  may  re- 
quire. The  finances  of  the  state  government  are  derived 
from  an  imposition  of  taxes  upon  persons,  property,  in- 
come, and  occupation.  They  are  direct.  In  this  respect, 
a  difference  exists  practically  in  the  two  sovereignties. 
The  influence  of  this  difference  is  very  great  upon  the 


252  THE    SCIENCE     OF     GOVERNMENT. 

permanence  of  the  union.  If  the  entire  sum  devoted  to 
the  use  and  purpof^e  of  government  by  the  national  and 
state  sovereignties,  should  for  five  or  ten  years  be  raised 
by  a  direct  tax  upon  the  people  and  their  property,  com- 
plaint would  become  common  and  general,  which  might 
produce  much  evil ;  it  most  certainly  would  produce  a 
practical  economy  of  expenditure,  which  exists  now  only 
in  theory.  By  indirect  taxation,  the  citizen  determines 
to  some  extent  how  much  he  will  pay,  and  is  not  subject 
to  the  annoyance  and  importunity  of  a  tax  collector. 
The  new  states  submit  to  this  mode  of  taxation,  although 
they  might  feel  oppressed  and  unwilling  to  contribute 
their  quota  of  the  expenditure  of  the  national  govern- 
ment, if  called  upon  directly  for  the  money.  This  diver- 
sity in  the  mode  of  taxation  is  of  the  utmost  importance 
to  the  quiet  of  the  community,  and  to  the  successful 
working  of  our  system.  The  power  of  taxation  is  sub- 
mitted to  with  additional  cheerfulness,  derived  from  the 
fact  that  those  who  pay,  through  the  instrumentality  of 
their  representatives  and  agents,  determine  the  amount 
to  be  paid,  and  the  purpose  of  the  payment.  The  want 
of  a  voice  or  agency  in  the  imposition  of  a  tax,  induced 
the  destruction  of  some  tea  in  the  Boston  harbor,  and 
contributed  much  and  mainly  to  the  revolution  which 
dissolved  our  dependence  upon  Great  Britain,  and  gave 
to  this  continent  the  states  and  principles  which  now 
command  the  respect  and  admiration  of  the  world.  The 
subject  of  revenue  has  been  the  source  of  more  vehe- 
ment opposing  party  political  discussion,  than  almost 
any  other  matter  connected  with  the  government.  The 
propriety  of  free  trade,  the  principles  upon  which  a  tarifi' 
or  regulation  of  duties  should  be  established,  have  been 
discussed  with  abilit}^,  occasionally  without  party  preju- 
dice, but  more  frequently  for  mere  party.  These  discus- 
sions as  a  whole  have  had  a  beneficial  influence  upon  the 


THE    SCIENCE     OF     GOVERNMENT.  253 

character  of  our  system ;  they  have  also  had  an  extensive 
influence  upon  the  business  and  occupation  of  the  citi- 
zens. I  shall  refer  to  them  briefly,  not  as  elements  of 
party  difference,  but  as  they  concern  and  constitute  a 
part  of  our  system  of  politial  economy.  Free  trade  is 
not  to  be  received  or  rejected  upon  any  absolute,  arbi- 
trary, fixed  principle,  but  its  adoption  or  rejection  is  to 
be  determined  by  various  considerations.  As  a  natural 
privilege,  an  individual  has  a  right  to  buy  and  to  sell,  at 
such  time  and  place  as  may  suit  himself  He  who  advo- 
cates free  trade,  starts,  therefore,  with  this  principle  in  his 
favor ;  but  it  is  to  be  remembered,  that  natural  right  is 
not  necessarily  and  uniformly  the  law  of  society.  An  in- 
dividual, by  going  to  a  distance  from  his  residence,  or  to 
a  neighboring  city  or  town,  may  be  able  to  purchase  an 
article  cheaper  or  better,  or  which  may  be  supposed  to 
be  better  or  cheaper  than  he  can  obtain  of  his  neighbors, 
with  whom  he  is  in  daily  intercourse  of  business,  and 
who  are  accustomed  to  buy  of,  or  traffic  with  him  ;  under 
these  circumstances  he  is  disposed  to  help  those,  upon 
whom  he  is  somewhat  dependent  for  his  own  support  or 
comfort ;  under  such  circumstances  he  buys  at  home,  and 
voluntarily  relinquishes  his  natural  right  of  free  trade. 
In  other  words,  all  rights,  natural  and  artificial,  are  modi- 
fied by  surrounding  rights  and  circumstances.  It  cannot, 
therefore,  be  said  in  relation  to  a  nation,  that  it  must 
adopt  or  reject  free  trade  with  any  other  nation,  or  with 
all  nations,  as  a  matter  of  course,  or  because  such  adop- 
tion or  rejection  may  be  supposed  to  be  in  accordance 
with  certain  fixed,  well  established  principles  of  political 
economy  or  science.  The  question  must  be  determined 
by  every  nation  for  itself,  upon  a  consideration  of  its  re- 
lation to  other  countries,  upon  a  consideration  of  the  in- 
terests of  its  citizens,  as  a  whole,  as  members  of  a  social 
community,  having  the  same  general  purpose. 


254  THE     SCIENCE     OF     GOVERNMENT. 

The  regulation  of  duties,  the  tariff/has  been  a  fruitful 
theme  of  discussion,  has  been  used  as  an  instrument  by 
which  to  obtain  political  capital.  Discussions  upon  this 
subject  are  useful,  even  when  conducted  by  mere  politi- 
cians, inasmuch  as  the  public  mind  must  be  enlightened 
and  the  public  judgment  improved,  by  an  examination  of 
our  system,  or  of  the  policy  pursued  for  the  time  ])eing 
by  those  in  office.  Erroneous  and  even  partizan  doctrines 
do  not,  in  this  country,  so  far  as  they  relate  to  govern- 
ment, accompUsh  any  permanent  or  extraordinary  result. 
I  speak  with  reference  to  our  past  history.  Error,  upon 
political  subjects,  when  open  and  exposed  to  be  com- 
batted  and  resisted  by  reason,  is  corrected.  The  Ameri- 
can people,  to  a  certain  extent,  are  educated  by  the 
means  of  books,  schools,  newspapers,  and  public  discus- 
sions. In  addition  to  this,  they  possess  a  practical  know- 
ledge of  men  and  things,  and  of  political  economy,  de- 
rived from  their  power  over  and  participation  in  our  sys- 
tem of  government,  and  over  those  who  execute  its  trusts. 
They  are,  therefore,  ordinarily  competent  to  detect  error ; 
they  are  ever  ready  to  uphold  the  truth  when  discovered. 

I  cannot  enter  upon  an  extended  discussion  of  the 
principles  by  which  the  imposition  of  duties  should  be 
regulated.  There  are  certain  prominent  principles,  which 
may  be  regarded  as  the  result  of  political  science  or 
economy.  Our  government  is  limited,  its  power  of  taxa- 
tion is  limited.  As  a  consequence  of  these  limitations, 
the  first  and  paramount  consideration  in  the  imposition 
of  duties  is,  an  ascertainment  of  the  sum  which  can  right- 
fully be  assessed,  and  which  is  required  for  a  manly,  eco- 
nomical, and  judicious  execution  of  the  trusts  of  govern- 
ment. This  cannot  be  fixed  with  mathematical  certainty, 
but  it  can  be  approximated ;  and  when  approximated  it  is 
not  to  be  enlarged  or  diminished  to  correspond  with  politi- 
cal considerations  of  a  party  character,  or  to  carry  out  any 


THE    SCIENCE     OF     GOVERNMENT.  255 

favorite  system  of  political  economy  which  may  be  adopted 
by  this  or  that  individual  or  class.  Another  element  to 
be  regarded  is,  an  estimate  of  the  amount  and  value  of 
property,  and  of  the  different  kinds  of  property  which 
may  be  imported.  Having  fixed  the  amount  to  be  as- 
sessed, and  the  value  and  character  of  the  property  upon 
which  it  is  to  be  assessed,  the  mode  of  distribution  of 
assessment  is  to  be  determined.  This  determination  can- 
not be  had  with  propriety,  by  the  adoption  of  an  arbi- 
trary standard  to  be  applied  under  all  circumstances,  at 
all  times;  but  must  be  attained,  so  as  to  give  force  and 
effect  to  several  considerations. 

The  theory  of  our  system  is,  that  the  people  are  to  be 
let  alone,  so  far  as  they  may  be  consistently  with  public 
right.  They  are  not  unnecessarily  to  be  impeded  in 
business  operations,  in  their  employment.  As  an  inci- 
dent of  the  concession  so  made  in  favor  of  private  right, 
it  is  the  duty  of  the  public,  of  the  government,  to  avoid 
all  sudden  changes  of  policy,  by  which  the  business  of 
the  community  may  be  disarranged.  In  the  regulation 
and  imposition  of  duties,  in  the  assessment  of  taxes,  it  is 
not  only  a  matter  of  science  but  of  solemn  duty,  imposed 
upon  the  government,  to  impose  them,  so  as  to  avoid  a 
necessity,  on  the  part  of  the  citizen,  suddenly  to  abandon 
or  change  his  course  of  business. 

Another  element  of  great  import,  consists  in  the  duty 
of  government,  so  far  as  it  legitimately  can,  to  guard  its 
own  interests  and  the  interests  of  its  citizens,  by  its  legis- 
lation, against  the  adverse  effects  and  influence  of  the 
legislation  of  other  countries  with  which  it  has  commer- 
cial relations. 

If  Great  Britain,  or  any  other  country  with  which  the 
United  States  have  intercourse,  shall,  by  its  course  of 
legislation,  attempt  to  impede  or  control  the  policy  or 
welfare  of  the  United  States,  or  of  its  citizens,  the  federal 


256  THE     SCIENCE     OF     GOVERNMENT. 

government,  as  a  matter  of  self-protection  and  defence, 
should,  by  its  legislation,  so  far  as  its  limited  jurisdiction 
will  permit,  counteract  and  resist  the  intluence  and  cflect 
of  such  foreign  legislation,  otherwise  foreign  inroads 
might  quietly  and  imperceptibly  be  made  upon  our  in- 
terests and  institutions.  Another  principle,  applicable  to 
the  imposition  of  duties,  is  derived  from  the  character  of 
the  property  upon  which  they  are  to  be  imposed.  Arti- 
cles of  daily  use  and  consumption,  which  from  such  use 
may  be  regarded  as  essential  to  the  comfort  of  a  large 
portion  of  the  people,  usually  are  and  should  be  assessed 
at  a  lower  rate  than  is  imposed  upon  articles  of  fancy 
or  luxury,  the  use  of  which  may  easily  be  dispensed. 
It  is  also  fit  and  proper  to  provide,  incidentally,  and 
so  far  as  may  be  prudent,  doing  no  injury  to  other 
interests,  for  the  production  and  growth  of  the  essential 
articles  of  consumption,  within  our  own  territory,  so  as  to 
avoid,  in  time  of  war  or  other  contingency,  a  dependence 
upon  other  nations.  These  are  j^rinciples  not  dependent 
upon  party  considerations  or  policy,  and  should  not  be 
disregarded  by  those  whose  trusts  are  not  of  a  party 
character ;  by  those  who  are  required  to  administer  the 
trusts  of  government  for  the  benefit  and  protection  of 
the  entire  country  and  its  institutions. 

The  federal  government  has  in  its  charge  the  posses- 
sion and  control  of  an  extensive  territory,  commonly  re- 
ferred to  as  the  public  lands.  In  relation  to  these,  the 
government  exercises  the  rights  which  appertain  to  it,  as 
owner  of  the  soil,  and  also  the  rights  of  sovereignty,  po- 
htical  rights.  As  a  general  principle,  the  government 
should  not  be  the  owner  of  soil,  except  so  far  as  its  muni- 
cipal and  public  duties  may  require  such  ownership.  In 
other  words,  I  mean  to  say,  that  the  government  cannot 
rightfully  become  the  purchaser  and  owner  of  land, 
merely  for  private  purposes,  or  for   speculation.      The 


THE     SCIENCE     OF     GOVERNMENT.  257 

history  of  the  pubUc  domain  is  instructive,  and  is  worthy 
of  a  more  extended  examination  than  is  fit  or  needful  for 
me  to  make.  When  the  colonies  were  established  in  this 
country,  the  British  crown  made  grants  of  the  soil  to  the 
colonies,  and  to  individuals.  Virginia  originally  claimed 
a  large  extent  of  territory  under  a  grant  made  in  1609, 
the  boundaries  of  which  were  assumed  without  any  accu- 
rate or  definite  knowledge,  which  was  possessed  by  the 
grantor  or  grantee,  as  to  the  extent  of  the  grant.  In 
1632,  a  grant  was  made  to  Lord  Baltimore  of  an  exten- 
sive territory,  embracing  within  its  limits,  to  some  extent, 
the  same  land  which  had  previously  been  the  subject  of 
grant.  A  grant  was  made  on  7th  of  October,  1691, 
in  the  third  year  of  William  and  Mary,  under  which 
Massachusetts  claimed  rights.  After  the  adoption  of  the 
federal  constitution,  the  country  was  embarrassed  by  its 
indebtment,  and  the  several  states  were  encumbered  with 
liabilities. 

It  was  essential  to  the  peace  and  prosperity  of  the 
country,  it  was  due  to  its  integrity  and  to  the  faith  which 
had  been  reposed,  that  some  means  should  be  adopted  to 
improve  the  condition  of  the  community,  to  discharge  the 
public  assurances.  The  waste  lands  which  had  been  the 
property  of  the  crown,  to  some  of  which  the  states  seve- 
rally asserted  title,  as  owners,  were  naturally  regarded  as 
a  source  or  fund  from  which  to  obtain  the  means  of  pay- 
ing and  of  performing  the  obligations  which  had  been 
assumed.  The  application  of  the  lands  to  this  purpose 
was  regarded  as  an  appropriate  use  and  disposition,  not- 
withstanding the  title  and  ownership  of  the  several  states 
was  not  of  equal  value.  This  inequality  of  interest  was 
not  considered  as  an  obstacle,  or  as  affording  cause  of 
serious  objection.  The  people  had  one  purpose  and  one 
view,  which  was  patriotic,  and  regarded  only  the  welfare 
of  the  country  as  a  whole.     Taking  advantage  of  the 

33 


258  THE    SCIENCE    OF    GOVERNMENT. 

opinion  and  disposition  Avliicli  prevailed,  congress,  in  Sep- 
temljer,  1780,  recommended  to  the  several  states  in  the 
union  having  claims  to  western  territory,  to  make  cessions 
of  a  portion  thereof  to  the  United  States.  In  October 
of  the  same  year,  congress  resolved  that  any  lands  so 
ceded,  in  pursuance  of  their  previous  recommendation, 
should  be  disposed  of  for  the  common  benefit  of  the 
United  States ;  should  be  settled  and  formed  into  distinct 
republican  states,  and  that  the  land  should  be  settled  and 
granted  under  regulations  which  congress  might  adopt. 
In  1783,  congress  adopted  another  resolution,  setting  forth 
the  conditions  on  which  cessions  of  territory  should  be 
received.  Immediately  after  this  resolution,  Virginia 
made  a  cession,  referring  to  the  resolution  of  congress 
passed  in  September,  1780,  whereby  the  title  of  Virginia 
to  the  north-west  territory,  was  transferred  to  the  United 
States,  upon  an  express  condition  that  the  lands  so  ceded 
should  be  considered  as  a  common  fund,  for  the  use  and 
benefit  of  such  of  the  several  states  as  had  or  should 
become  members  of  the  union,  and  should  be  in  good 
faith  applied  to  such  purjDOse,  and  for  no  other  use.  Mas- 
sachusetts, Connecticut,  and  New  York  have  made  simi- 
lar grants,  and  upon  similar  trusts  and  conditions.  The 
United  States  hold  the  land  as  owner  and  as  sovereign, 
for  purposes  of  revenue,  and  for  the  purpose  of  enlarging 
our  political  institutions.  All  of  the  grants  of  the  seve- 
ral states  were  made  upon  three  conditions :  First,  that 
the  ceded  territories  should  be  formed  into  states,  and 
admitted  in  due  time  into  the  union,  with  all  the  rights 
belonging  to  other  states  ;  Secondly,  that  the  lands  should 
constitute  a  common  fund,  to  be  disposed  of  for  the  gene- 
ral benefit  of  all  the  states  ;  Thirdly,  that  they  should  be 
sold,  and  settled,  at  such  time  as  congress  should  direct. 
The  federal  government,  acting  in  good  faith,  cannot  dis- 
regard the  trusts  to  which  it  has  assented,  by  an  accept- 


THE    SCIENCE    OF    GOVEENMENT.  259 

ance  of  the  grants  by  which  it  acquired  its  title  as  owner, 
to  the  pubhc  lands.  Such  acceptance  does  not  bind  or 
qualify  the  right  of  the  federal  government  over  the 
territory,  in  relation  to  matters  of  sovereignty.  The  pro- 
vision, that  the  territory  should  in  due  time  be  formed 
into  states,  and  admitted  as  such  into  the  union,  with  the 
same  privileges  as  other  states  enjoy,  leaves  the  discretion 
of  congress,  in  this  particular,  to  be  exercised  in  accord- 
ance with  its  own  judgment.  The  public  lands  were  not 
exclusively  obtained  under  the  several  state  grants,  to 
which  reference  has  been  made.  In  addition  to  the 
grants  made  by  the  several  states,  cessions  have  been 
made  by  foreign  sovereignties.  Louisiana  was  purchased 
of  France,  or  taken  in  discharge  of  suj)posed  claims 
against  that  country.  Florida  was  obtained  from  Spain. 
Some  portion  of  the  Oregon  territory  was  procured  from 
Spain.  In  relation  to  other  portions  of  this  territory,  it 
may,  perhaps,  be  said,  that  the  United  States  hold  it  by 
discovery  and  occupation.  The  United  States  have  also 
acquired  large  bodies  of  land,  by  cession  or  purchase 
from  the  Indians.  Many  of  the  most  important  subjects, 
which  appertain  to  the  duties  of  the  federal  government, 
have  been  the  occasion  of  vehement  party  discussion ; 
they  have  given  opportunity  for  the  invention  of  many 
schemes  and  theories,  sound  and  unsound.  This  may  be 
said  in  relation  to  the  public  lands ;  the  course  of  the 
government,  in  its  disposition  of  them,  has  been  frequently 
disapproved  and  condemned,  from  time  to  time.  Some 
few  years  since,  it  was  urged  in  the  senate  of  the  United 
States,  that  the  management  of  the  pubUc  lands  by  the 
government  had  been  harsh,  illiberal,  and  severe ;  that 
the  citizens,  who  had  embarked  their  fortunes  in  the  great 
west,  with  a  determination  to  unfold  its  capacity  and  to 
advance  it  to  a  state  of  civilization,  should  be  encouraged 
and  sustained  by  donations  of  the  soil.     This  proposition 


260  THE    SCIENCE    OF    GOVERNMENT. 

was  calculated  to  commeucl  itself,  as  a  liberal  and  humane 
arrangement.  It  was,  however,  resisted ;  and  upon  a 
resolution  introduced  in  the  senate  of  the  United  States, 
by  which  an  inquiry  was  proposed  in  relation  to  the 
mode  of  selling  the  public  lands,  and  to  ascertain  the 
expediency  of  more  rapid  sales,  a  debate  arose  in  which 
extraordinary  and  able  efforts  were  made  by  several 
senators.  The  resolution  gave  rise  also  to  a  discussion 
not  immediately  connected  with  its  subject,  which  pro- 
duced an  examination  and  consideration  of  some  portion 
of  our  system,  of  the  duties  and  powers  of  government, 
in  relation  to  which  a  senator  from  Massachusetts/^'  made 
a  most  profound,  constitutional  exposition.  The  public 
lands,  as  property,  as  a  source  of  revenue,  are  of  much 
value.  This  value,  however,  is  of  trifling  importance 
when  contrasted  with  the  pohtical  associations  and  insti- 
tutions, which  have  resulted,  which  may  continue  to  result, 
from  the  ownership  and  possession  of  them.  After  a 
sale  and  settlement  of  a  section  of  territory  has  been 
made,  the  occupants  of  the  soil,  although  under  the  pro- 
tection of  the  United  States,  have  no  local  legislation  or 
tribunals,  by  which  to  protect  their  individual  rights  as 
members  of  society.  This  condition  of  things,  in  which 
every  man  virtually  makes  and  construes  his  own  law, 
cannot  with  safety  be  sustamed  or  permitted.  To  avoid 
the  evils  of  such  position,  congress,  under  the  constitution 
of  the  United  States,  establishes  a  territorial  government, 
provides  for  the  existence  of  legislative,  judicial,  and  exe- 
cutive departments,  generally  appointing  the  officers  of 
the  judicial  and  executive  departments,  through  the 
action  of  the  President  of  the  United  States,  reserving  a 
control  over  the  acts  of  the  legislative  department,  which 
is  composed  of  members  chosen  by  and  from  the  terri- 

*  The  Hon.  Daniel  Webster. 


THE    SCIENCE     OF     GOVERNMENT.  261 

tory.  In  this  respect,  congress  exercises  its  own  discre- 
tion, and  confers  more  or  less  power  npon  all  the  local 
officers  and  departments,  according  to  the  peculiar  cir- 
cumstances connected  with  the  territory  to  be  governed. 
The  power  of  congress  is  limited  and  controlled  only  by 
the  constitution  of  the  United  States,  which  it  cannot 
disregard.  Any  and  every  power  or  authority  conferred 
upon  a  territorial  government,  must  be  in  subjection  to 
the  constitution ;  and  any  attempt  to  transcend  this  instru- 
ment would  fail  in  its  accomplishment. 

The  constitution  of  the  United  States  is  coextensive 
with  the  sovereignty  of  the  United  States ;  and  any  and 
every  territory  which  rightfully  belongs  to  the  one  can- 
not be  above  or  beyond  the  control  of  the  other,  al- 
though, in  some  instances,  from  a  want  of  local  law,  of 
departments  and  institutions,  it  may  not  be  applied. 
Whenever  territory  has  been  obtained  by  cession  from 
France,  or  other  foreign  country,  the  laws  of  the  country 
by  which  the  cession  may  have  been  made,  are  regarded 
as  the  measure  of  right,  or  as  the  laws  of  the  territory, 
until  the  United  States  impose  other  rules  and  regula- 
tions. This  is,  however,  limited  by  the  constitution  and 
nature  of  our  civil  institutions,  against  which  no  foreign 
law  can  prevail  by  adoption  or  permission.  The  cession 
of  the  soil  and  sovereignty  of  a  country  or  province,  does 
not  operate  as  a  cession,  or  as  an  extinguishment  of  indi- 
vidual private  right.  Persons  occupying  a  ceded  terri- 
tory may  continue  and  become  subjects  of  the  sove- 
reignty to  which  it  may  have  been  ceded ;  or  they  may 
dispose  of  their  effects,  and  become  residents  of  other  por- 
tions of  the  country  of  their  original  allegiance,  or  of  any 
other  which  may  suit  them.  This  is  regarded  as  a  mat- 
ter of  public  law,  of  public  right,  without  any  stipula- 
tion, although  in  the  cession  of  territory  by  one  sove- 
reignty to  another,  it  is  usual  to  make  provision  for  the 


262  THE    SCIENCE    OF    GOVERNMENT. 

security  of  individuals,  and  of  private  right.  In  the 
treaty  by  ■which  Louisiana  was  transferred  to  the  United 
States,  it  is  provided,  that  "  the  inhabitants  of  the 
ceded  territory  shall  be  incorporated  in  the  union  of  the 
United  States,  and  admitted,  so  soon  as  possible,  accord- 
ing to  the  principles  of  the  federal  constitution,  to  the 
enjoyment  of  all  the  rights,  advantages,  and  immunities 
of  citizens  of  the  United  States ;  and,  in  the  meantime, 
they  shall  be  maintained  and  protected  in  the  free  enjoy- 
ment of  their  liberty,  property,  and  the  religion  ■which 
they  profess."  This  short  clause  contains  three  important 
stipulations  on  the  part  of  the  United  States.  That  the 
territory  should  be  admitted  to  the  union  us  a  state,  so 
soon  as  it  could  be  in  conformity  with  the  constitution ; 
that  the  inhabitants  should  thereby  become  citizens  of 
the  United  States,  and  in  the  meantime  should  be  pro- 
tected in  their  liberty,  property,  and  religion.  All  these 
stipulations  are  qualified  and  restricted  by  the  constitu- 
tion, and  their  performance  could  be  required  only  so  far 
as  the  forms  of  our  government  permit  a  performance 
thereof  Similar  provisons  have  been  in  other  cessions 
of  territory.  In  October,  1803,  congress  passed  an  act, 
authorizing  the  president  to  take  possession  of  the  terri- 
tory which  had  been  ceded  by  France.  Subsequently 
the  same  was  divided  into  two  districts,  and  territorial 
governments  were  established ;  the  southern  portion 
under  the  name  of  Orleans,  and  the  other  under 
the  title  of  district  of  Louisiana.  In  April,  1812,  the 
southern  district  was  admitted  to  the  union  as  a  state, 
under  the  name  of  Louisiana  and  the  name  of  the  other 
district  was  changed  to  that  of  Missouri,  and  subse- 
quently, on  the  10th  of  August,  1821,  became  a  state 
under  the  name  of  Missouri.  The  admission  of  this  state 
caused  a  disagreement,  at  the  time,  between  the  two 
branches  of  congress.     It  also  produced  an  excited  and 


THE    SCIENCE     OF     GOVERNMENT.  263 

somewhat  turbulent  debate,  growing  out  of  an  effort  to 
prohibit  slavery.  Henry  Clay  exerted  an  important  and 
conciliatory  influence,  which  was  productive  of  much 
good,  which  did  much  to  allay  angry  feeling,  to  carry  the 
union  through  a  boisterous  passage.  The  territories  of 
the  United  States  are  ordinarily  allowed  to  send  dele- 
gates to  the  house  of  representatives,  a  branch  of  congress, 
who  are  allowed  to  talk  and  discuss  measures,  but  are  not 
allowed  to  vote  for  the  adoption  or  rejection  thereof 
This  last  right  cannot  be  conferred  constitutionally,  ex- 
cept upon  a  representative  or  senator  of  some  state.  The 
delegate  of  a  territory,  however,  can  advise  in  relation  to 
the  condition  and  character  of  the  territory  which  he 
represents,  and  thereby  furnish  to  those  who  make  law 
for  his  constituents'  local  information,  which  might  not 
otherwise  be  so  readily  or  accurately  obtained.  The 
principal  officers,  judicial  and  executive,  of  a  territory, 
are  frequently  selected  from  without  the  territory  in 
which  their  duties  are  to  be  performed.  This  is  often  a 
cause  of  disquiet  and  uneasiness,  inasmuch  as  the  people 
are  inclined  to  think,  that  all  the  offices  and  emoluments 
of  place  belong  to  themselves ;  that  they  are,  in  fact,  more 
conversant  with  and  more  competent  to  manage  their 
own  affairs  than  strangers  can  be.  This  is  undoubtedly 
true  ;  the  feeling  exhibits  the  influence  of  our  system,  in 
favor  of  free  institutions,  in  favor  of  an  extension  of  po- 
litical rights  to  all,  and  it  exhibits  in  the  people  an  im- 
patience, an  unwillingness  in  any  condition  in  which 
they  are  not  so  free  as  their  neighbors ;  it  also  shows  a 
willingness  to  extend  to  others  the  freedom  which  is 
vouchsafed  by  our  system. 

The  result  is,  that  so  soon  as  a  territorial  government 
is  established,  the  people  look  forward  to  an  improvement 
in  their  political  condition,  which  can  be  attained  only  by 
the  establishment  of  a  state  government.     This  condi- 


264  THE    SCIENCE     OF     GOVERNiMENT. 

tion,  when  attained,  is  the  last,  and  it  may  with  propriety 
be  said,  the  most  important,  in  which  the  public  lands  are 
considered.  They  are  now  to  be  regarded  in  their  poli- 
tical aspect.  Under  the  constitution  of  the  United  States, 
new  states  may  be  admitted  by  the  congress  into  the 
union ;  but  no  new  state  can  be  formed  or  erected  within 
the  jurisdiction  of  any  other  state,  nor  can  any  state 
be  formed  by  the  junction  of  two  or  more  states,  or  parts 
of  states,  without  the  consent  of  the  legislatures  of  the 
states  concerned,  as  well  as  of  the  congress.  Whether 
the  framers  of  the  constitution  contemplated  the  acquisi- 
tion of  new  territory,  may  be  doubted.  "Whether  con- 
gress can  acquire  new  territory  merely  for  the  purpose 
of  creating  new  states,  is  an  entirely  different  question  ; 
it  can,  without  doubt,  control  any  territory  which  apper- 
tains to  the  United  States.  I  am  unable  to  find  any  pro- 
vision in  the  constitution,  from  which  congress  can  assert 
in  itself  a  right  to  purchase  territory  at  its  pleasure,  at 
the  cost  of  the  nation,  for  the  purpose  of  enlarging  its 
domain  or  increasing  the  number  of  its  states.  As  I  have 
attempted  to  show,  in  a  previous  lecture,  the  acquisition 
of  territory  should  be  a  matter  of  necessity,  growing  out 
of  circumstances,  under  the  control  of  the  war  or  treaty- 
making  power  of  the  government. 

In  relation  to  the  powers  of  the  government,  the  people 
are  inclined  to  enlarge  or  diminish  them,  in  accordance 
with  their  wishes,  momentarily  forgetting  or  disregarding 
the  fact,  that  the  federal  government  is  limited  in  its 
powers  and  in  its  purpose.  Whenever  an  act  of  govern- 
ment is  in  harmony  with  the  opinion  or  wish  of  a  large 
majority  of  the  people,  no  one  can  successfully  gainsay 
or  resist  it,  provided  such  act  is  of  a  sovereign  political 
character.  An  act  9f  the  government,  in  fraud  or  in  vio- 
lation of  private  right,  of  contract,  or  which  goes  to  the 
destruction  of  private  property  without  compensation, 


THE    SCIENCE     OF     GOVERNMENT.  265 

can  be  by  the  aid  of  the  judiciary,  successfully  resisted. 
If  the  legislative  or  treaty-making  power  shall,  in  viola- 
tion or  in  disregard  of  our  system,  acquire  additional  and 
foreign  territory,  it  would  probably  be  beyond  the  power 
of  the  judiciary  to  control  or  resist  such  acquisition. 
Although  the  judiciary  is  designed  to  uphold  the  consti- 
tution, to  prevent  its  infraction,  to  restrain  other  depart- 
ments and  officers  within  constitutional  limits,  there  are 
some  matters  of  a  political  bearing  and  character  which 
it  cannot  reach.  If  the  legislative  and  executive  depart- 
ments admit  that  the  state  of  the  country  in  its  relation 
to  any  other  country,  is  a  state  of  war,  the  judicial  de- 
partment must  conform  to  such  recognition  of  the  status 
of  the  country,  and  regard  it  as  a  state  of  war. 

Upon  the  same  or  a  similar  principle,  it  may  be  urged 
with  great  plausibility,  that  whenever  the  legislative  and 
executive  departments  recognize  certain  territory  as  the 
territory  of  the  United  States,  the  judiciary  is  bound  to 
regard  it  as  territory  of  the  United  States.  The  acquisi- 
tion of  territory  must  depend,  therefore,  practically,  upon 
the  fidelity  and  integrity  of  the  legislative  and  executive 
departments.  These  departments  have  the  same  interest 
to  uphold  and  adhere  to  the  system,  as  the  people  or  any 
other  department  of  government  can  have.  Congress  is 
bound  to  maintain  in  every  state  a  republican  form  of 
government ;  this  obligation  applies  to  new  states,  so 
well  as  to  old,  and  whenever  a  state  is  admitted,  whatever 
its  constitution  may  be,  whatever  laws  it  may  pass,  each 
and  all  of  these,  when  they  become  the  subject  of  discus- 
sion in  the  judicial  tribunals,  must  conform  to  the  consti- 
tution of  the  United  States,  and  if  they  do  not  so  con- 
form, they  will  be  regarded  as  null  and  void.  From  this 
short  survey  of  the  public  lands,  you  may  perceive  their 
value  as  a  matter  of  money,  as  property  held  by  the 
United  States  in  trust,  for  certain   specified   purposes, 

34 


266  THE    SCIENCE    OF    GOVERNMENT. 

■which  they  are  bound  to  execute,  and  which  they  may 
not  rightfully  disregard.  Lands  have  been  given  to  sol- 
diers, and  to  their  families,  for  services  rendered  or  to  be 
rendered  ;  they  have  been  the  subject  of  donation  ;  and, 
under  some  emergencies  it  may  be  and  luidoubtedly 
w^ould  be  judicious,  and  within  the  rightful  exercise  of 
power,  to  give  away  portions  of  them  ;  but  an  indiscri- 
minate donation  of  them,  as  matter  of  mere  cliarit}-  or 
grace,  or  to  build  up  any  one  state  at  the  expense  of 
another,  would  be  a  violation  of  the  trusts  under  which 
they  are  holden. 

The  survey  which  has  been  presented  also  shows  their 
political  value  and  history.  It  shows  you  how  states  are 
made,  and  that  the  policy  of  the  government  has  been 
liberal.  A  new  countr}',  when  first  settled,  generally  has 
as  pioneers  a  hardy,  industrious,  and  adventurous  race  of 
men,  of  different  origin,  of  different  habits,  each  class 
having  its  own  peculiarities.  The  territorial  government, 
which  isthe  first  in  the  order  of  progress,  is  designed  to 
encourage  and  stimulate  their  exertions.  They  are  aided 
in  their,  public  ..enterprises,  and  in  the  support  of  govern- 
ment, from  the.  exchequer  of  the  country.  In  process  of 
time,  they  advance  in  civilization,  in  the  arts  and  sciences, 
in  education,  and  in  a  knowledge  of  free  institutions,  in 
habits  and  purpose.  In  this  respect  they  differ  from  colo- 
nies, because  they  are  in  a  state  of  pupilage,  and  look 
forward  to  the  time  at  which  they  may  emerge.  Where- 
as colonies  once  are  colonies  forever,  unless  they  rise 
against  the  parent  government,  and  by  reason  of  actual 
or  supposed  wrongs  and  grievances,  assert  their  indepen- 
dence, and  assume  their  inalienable  right  to  have  a  voice 
and  an  influence  in  their  own  government.  The  continu- 
ance of  a  territorial  pupilage  is  dependent  upon  many 
considerations.  In  the  case  of  a  portion  of  the  territory 
acquired  from  France,  that  which  is  now  Missouri,  some 


THE    SCIENCE     OF     GOVERNMENT.  267 

eighteen  years  elapsed  before  its  admission  as  a  state. 
The  title  to  the  public  lands  holden  by  the  United  States, 
has  in  part  been  obtained  by  purchase  of  the  Indian 
tribes.  They  occupy  a  relation  to  the  United  States, 
which  has  its  own  peculiarities.  This  relation  has  been 
examined  as  a  moral  question,  and  many  persons  have 
regarded  them  as  the  subjects  of  wrong  and  oppression. 
The  theory  of  all  civilized  nations  in  relation  to  them 
has  been,  that  civihzation  and  the  elevation  of  mind  and 
morals,  which  may  result  therefrom,  is  the  great  object 
and  purpose  of  human  existence ;  that  the  progress  of 
civilization  is  and  must  be  onward,  although  its  progress 
may  be  marked  by  those  who  may  fall  by  the  wayside,  or 
by  the  memorials  and  remembrances  of  a  race  extinct. 
In  pursuance  of  this  theory,  the  natives  of  a  before  un- 
known country,  when  discovered  by  civilized  nations, 
recede,  and  continue  to  recede  until  the  places  which 
once  knew  them  shall  know  them  no  more.  The  policy 
of  the  United  States,  which  has  been  adopted  in  their  in- 
tercourse with  the  Indian  tribes,  has  been  liberal  and 
humane.  They  are  regarded  as  the  owners  and  occu- 
pants of  the  soil  over  which  their  hunting  grounds  may 
extend,  and  in  its  occupation  they  have  been  and  are 
protected.  They  are  allowed  to  govern  themselves,  in 
their  internal  and  domestic  affairs,  without  check  or  re- 
straint. They  have  been  furnished  with  implements  of 
husbandry,  and  many  efforts  have  been  made  in  their 
favor,  designed  to  elevate  and  improve  their  moral  and 
intellectual  condition.  They  are  not,  however,  allowed 
the  rights  which  appertain  to  the  ownership  of  the  soil. 
They  cannot  sell  their  land  without  the  consent  and  ap- 
probation of  the  United  States ;  and  although  they  are 
permitted  to  establish  and  to  execute  their  own  internal 
rules  and  usages,  they  are  under  the  protection  and  sove- 
reignty of  the  United  States. 


268  THE    SCIENCE    OF    GOVERNMENT. 

The  United  States  have  been  accustomed  to  make  trea- 
ties with  the  dift'erent  Indian  tribes,  in  which  they  stipu- 
late as  sovereign  contracting  parties.  These  treaties 
have  been  made,  generally,  with  intent  to  secure  to  them 
the  privileges  which  they  are  permitted  to  enjoy,  to  pro- 
tect their  rights,  and  to  afford  inducements  and  opportu- 
nity for  their  improvement,  with  the  intent  also  to  in- 
duce a  disposition,  on  the  part  of  the  tribes,  of  gratitude 
and  dependence.  The  government  of  the  United  States 
has  adhered  with  fidelity  and  exactness  to  its  treaty  stip- 
ulations. The  Indians  have  been  protected  from  encroach- 
ments by  the  adjoining  states,  and  the  citizens  of  the 
United  States  have  been  restrained  from  improper  or 
wrongful  interference  with  the  pursuits  or  occupation  of 
the  Indians.  In  1802,  an  act  w^as  passed  by  the  congress 
of  the  United  States  to  regulate  trade  and  intercourse 
with  the  Indian  tribes,  and  preserve  peace  on  the  frontiers. 
By  this  act  it  is  provided,  that  no  one  should  enter  the 
Indian  territory  without  a  passport.  Offences  against 
the  Indians  and  their  territory  are  punishable  under  the 
laws  of  the  United  States ;  no  settlement  or  survey,  in 
territory  secured  by  treaty  to  an  Indian  tribe,  can  be 
made  by  citizens  of  the  United  States,  or  hy  other  per- 
sons not  belonging  to  the  tribe.  The  murder  of  an 
Indian  by  a  citizen  of  the  United  States,  or  b}^  other 
person  not  belonging  to  an  Indian  tribe,  is  j^unishable  by 
death.  Traders  are  not  permitted  to  enter  their  territory, 
except  under  a  license  from  the  United  States,  which  may 
be  recalled  by  its  government.  The  statute  also  provides 
that  no  purchase,  grant,  lease,  or  other  conveyance  of 
lands,  or  of  any  title  or  claim  thereto,  from  any  Indian, 
or  nation  or  tribe  of  Indians,  within  the  bounds  of  the 
United  States,  shall  be  of  any  validity,  in  law  or  equity, 
unless  the  same  be  made  by  treaty  or  convention,  entered 
into  pursuant  to  the  constitution.     The  act  also  provides, 


THE     SCIENCE     OF     GOVERNMENT.  269 

that  in  order  to  promote  civilization  among  the  friendly 
Indian  tribes,  and  to  secure  the  continuance  of  their 
friendship,  it  shall  be  lawful  for  the  President  of  the 
United  States  to  cause  them  to  be  furnished  with  useful 
domestic  animals,  and  implements  of  husbandry,  and  with 
goods  or  money,  as  he  shall  judge  proper,  and  to  appoint 
such  persons  from  time  to  time,  as  temporary  agents,  to 
reside  among  the  Indians,  as  he  shall  think  fit.  Prior  to 
the  passage  of  this  act,  and  so  early  as  May,  1800,  pro- 
vision was  made  by  law  for  defraying  the  expense  of 
travel  to  and  from  the  seat  of  government,  of  such  In- 
dians as  might  visit  the  same,  from  the  public  treasury. 
In  1819,  an  act  was  passed,  making  provision  for  the  civi- 
lization of  the  Indian  tribes  adjoining  the  frontier  settle- 
ments, by  which  the  President  of  the  United  States  was 
authorized  to  employ  capable  persons  to  instruct  Indians 
in  agriculture,  and  to  teach  Indian  children  in  reading, 
writing,  and  arithmetic.  Similar  provisions,  designed  to 
improve  the  character  and  condition  of  the  Indian  race, 
have  been  since  made.  Prior  to  the  revolution,  the  lands 
in  the  United  States  were  claimed  by  different  foreign 
sovereignties,  or  by  grants  under  them  upon  an  alleged 
right  of  discovery.  Discovery,  as  generally  understood, 
gives  an  exclusive  right  to  the  discoverer  to  extinguish 
the  Indian  title  by  purchase,  or  by  conquest,  and  gives 
also  such  right  of  sovereignty  as  the  condition  of  the 
people  may  permit  the  discoverer  to  exercise.  These 
rights  by  cessions  to  individuals,  to  colonies,  and  to  the 
United  States,  have  been  transferred  from  the  sovereign- 
ties which  asserted  title  thereto,  in  the  first  instance,  and 
are  now  owned  by  their  grantees,  or  those  claiming  under 
them.  The  United  States  have  not  asserted  its  title  ori- 
ginating in  discovery,  so  far  as  to  acquire  the  absolute 
possession,  by  the  forcible  expulsion  of  the  Indian  tribes. 
They  have  purchased  as  their  convenience  has  required, 


270  THE    SCIENCE    OF    GOVERNMENT. 

maintaining  only  in  themselves  an  exclusive  right  to  pur- 
chase. The  title  of  the  Indians  to  occupancy  has  been 
uniformly  sustained  and  vindicated  by  the  f^upreme  court 
of  the  United  States,  in  many  cases  before  it,  in  which 
the  Indian  title  has  been  discussed.  The  court  has  also 
maintained  the  political  rights  of  the  Indians,  to  the  same 
extent  as  they  have  been  recognized  by  the  legislative 
and  executive  departments  of  the  federal  government. 
In  a  case  designated,  "  The  Cherokee  Nation  v.  The  State  of 
Georgia"  the  court  say,  the  Cherokee  nation  is  not  a  for- 
eign state,  in  the  sense  in  which  the  term  is  used  in  the 
constitution  of  the  United  States.  The  Cherokees  are  a 
state ;  they  have  uniformly  been  so  regarded.  The  trea- 
ties made  with  them  by  the  United  States,  recognize 
them  as  a  people  capable  of  maintaining  the  relations  of 
peace  and  w^ar,  of  being  responsible  in  their  political  char- 
acter for  any  violation  of  their  engagements,  or  for  any 
aggression  committed  on  the  citizens  of  the  United  States, 
by  any  individual  of  their  community.  The  Indians  are 
acknowledged  to  have  an  unquestionable  right  to  the 
lands  they  occup}^  until  that  right  shall  be  extinguished 
by  a  voluntary  cession  to  the  United  States.  They  can- 
not appropriately  be  designated  foreign  nations,  but  they 
may  be  denominated  domestic  dependent  nations.  They 
occupy  a  territory  to  which  the  United  States  assert  title, 
independent  of  their  will,  which  must  take  effect  in  pos- 
session, when  the  Indian  possession  ceases.  They  look  to 
the  United  States  for  protection,  rely  upon  its  kindness 
and  its  power,  and  appeal  to  its  sovereignty,  in  all  cases 
of  want  or  difficulty. 

In  another  case  instituted  by  Worcester  v.  The  State  of 
Georgia,  in  the  supreme  court,  to  reverse  a  decision  of  the 
state  court,  the  political  rights  of  the  Indians  were 
ackuowledged  and  vindicated  against  the  improper  and 
unconstitutional  legislation  of  Georgia.     In  this  case  it 


THE    SCIENCE    OF    GOVERNMENT.  271 

is  said,  that  the  treaties  and  laws  of  the  United  States 
contemplate  the  Indian  territory  as  completely  separated 
from  that  of  the  states;  that  all  intercourse  with  the 
Indians  should  be  carried  on  under  the  exclusive  govern- 
ment of  the  union ;  that  they  had  always  been  recog- 
nized as  distinct,  independent  political  communities,  re- 
taining their  original  natural  rights  as  the  undisputed 
possessors  of  the  soil,  from  time  immemorial.  The  case  to 
which  reference  has  been  made,  contains  an  able  review 
of  the  origin  and  character  of  our  political  history,  of  the 
rights  of  discovery,  of  our  title  to  the  soil,  and  of  our 
policy  in  relation  to  those  whose  Mhers  preceded  our 
ancestors  in  its  possession.  The  chief  justice  closed  an 
able  opinion  by  saying,  "  The  Cherokee  nation  is  a  dis- 
tinct community,  occupying  its  own  territory  with  boun- 
daries described,  in  which  the  laws  of  Georgia  have  no 
force,  and  which  the  citizens  of  Georgia  have  no  right  to 
enter,  but  with  the  consent  of  the  Cherokees,  or  in  con- 
formity with  treaties,  or  with  the  acts  of  congress."  I 
have  briefly  exhibited  to  you  the  mode  and  objects  in 
and  from  which  the  revenue  of  the  state,  and  of  the 
national  sovereignty,  is  obtained.  In  so  doing,  I  have 
referred  to  matters  more  or  less  directly  connected  there- 
with, from  which  you  will  perceive,  that  a  division  and 
limitation  of  power  is  manifest  throughout.  You  will 
also  perceive,  that  a  disposition  to  encourage  the  estab- 
lishment of  political  institutions,  based  upon  the  will  of 
the  people,  is  a  prominent  and  pervading  element. 


LECTURE    X. 


THE  RELATION  AVHICH  SUBSISTS  BETWEEN  THE  FEDERAL  GOVERNIIENT  AND  THE 
SEVERAL  STATES.  —  BETWEEN  THE  SEVERAL  STATES  AS  INDEPENDENT  SOVEREIGN- 
TIES.—BET^VEEN  THE  CITIZENS  OF  THE  SEVERAL  STATES. 


The  colonies  which  existed  in  the  United  States  under 
the  protection  and  control  of  the  British  crown,  by  means 
of  the  American  revolution,  became  independent  as  states, 
or  political  sovereignties.  The  people  formed  constitu- 
tions, by  which  the  powers  of  government  were  defined, 
and  thereby  the  relation  between  the  people  and  the 
government  was  established.  The  people  reserved  cer- 
tain rights  to  themselves,  and  retained  control,  to  a  certain 
extent,  over  the  government,  so  as  to  secure  a  faithful 
administration  of  the  trusts  reposed.  In  all  the  state 
constitutions  so  adopted,  evidence  is  contained,  showing 
that  the  people  did  not  consider  themselves  made  for  the 
use  or  benefit  of  those  who  might  exercise  the  powers  of 
government,  that  in  their  judgment,  government  should 
be  established  for  the  use  and  benefit  of  those  governed. 
The  state  sovereignties,  although  vested  with  limited 
jurisdiction,  were  independent  of  all  other  sovereignties 
or  governments ;  they  were  amenable  only  to  the  consti- 
tution under  which,  and  to  the  people  of  the  state  for 
which  they  had  been  established.  The  several  states,  as 
originally  constituted,  exercised  the  powers  of  war  and 

35 


274  THE    SCIENCE    OF    GOVERNMENT. 

peace,  of  making  treaties,  of  regulating  their  intercourse, 
and  the  intercourse  of  their  citizens,  ^vith  other  states 
and  citizens. 

At  this  period  of  our  liistory,  there  were  two,  and  only 
two,  depositories  of  power,  the  people  and  the  state  gov- 
ernment. Soon  it  was  ascertained  that  the  several  states, 
independent  of  each  other,  with  no  common  hond  or  con- 
tract of  union,  had  many  interests  in  common,  for  the 
attainment  and  security  of  which  they  had  acted  together 
against  the  parent  government  from  which  they  had 
severed.  It  was  ascertained  that  the  foreign  relations  of 
the  several  states  were  similar  in  purpose;  that  the 
citizens  of  the  several  states,  in  their  business  operations, 
minded  with  each  other.  To  avoid  collision  and  conten- 
tion  between  themselves,  to  make  common  cause  against 
external  enemies  and  influence,  an  association  of  the 
states  was  proposed  and  carried  into  effect,  in  the  form  of 
articles  of  confederation  and  perpetual  union,  which  was 
assented  to  by  the  thirteen  original  states.  In  this  ar- 
rang-ement  the  several  states  acted  in  their  sovereign 
capacity  as  states,  in  which  the  people,  acting  as  indi- 
viduals, had  no  direct  agency.  It  was  agreed,  that  the 
confederacy  should  be  known  as  the  United  States  of 
America ;  that  each  state  should  retain  its  sovereignty, 
freedom,  and  independence  ;  and  every  power,  jurisdic- 
tion, and  right  which  had  not  been  expressly  delegated 
to  the  United  States  in  congress  assembled.  Provision 
was  made  for  a  congress  composed  of  delegates  from  the 
several  states,  the  states  reserving  power  to  recall  their 
delegates  at  any  time,  by  the  substitution  of  others.  By 
these  articles  the  states  severally  entered  into  a  firm 
league  of  friendship  with  each  other  for  their  common 
defence,  the  security  of  their  liberties,  and  their  mutual 
and  general  welfare,  binding  themselves  to  assist  each 
other  against  all  force  offered  to,  or  attacks  made  upon 


THE     SCIENCE     OF     GOVERNMENT.  275 

them  or  any  of  them  on  account  of  religion,  sovereignty, 
trade,  or  any  other  pretence  whatever.  The  general  in- 
tent of  mutual  aid  and  protection  is  manifest  in  the  arti- 
cles adopted.  A  prominent  and  important  purpose  was 
sought  to  be  attained  by  providing  that  no  state,  without 
the  consent  of  the  United  States  in  congress  assembled, 
should  send  or  receive  an  embassy  from,  or  enter  into 
any  conference,  agreement,  alliance,  or  treaty,  with  any 
king,  prince,  or  state ;  that  no  two  or  more  states  should 
enter  into  any  treaty,  confederacy,  or  alliance  with  each 
other,  without  the  consent  of  congress.  These  articles 
contain  evidence  of  much  political  knowledge  and  saga- 
city ;  they  were,  however,  cumbersome,  and,  from  many 
defects,  were  found  insufficient  and  incompetent  to  ac- 
complish the  j^ui'pose  for  which  they  were  designed.  In 
this  condition  of  the  country,  it  became  essential  to  its  in- 
terests, and  to  the  safety  of  the  people,  to  devise  some 
scheme  by  wdiich  to  avoid  the  inconvenience,  the  insuffi- 
ciency, and  the  evils  of  the  articles  of  association.  A 
convention  of  delegates  from  the  several  states  was  sug- 
gested, and  the  suggestion  w^as  adopted,  for  the  purpose 
of  proposing  a  remedy.  This  convention  was  composed 
of  the  most  able  and  patriotic  men  in  the  country,  who 
were  chosen  for  their  distinguished  ability  and  patriotism. 
After  days  of  deliberate,  candid,  and  careful  discussion 
and  consideration,  an  instrument,  designated  the  constitu- 
tion of  the  United  States,  w^as  recommended  to  the  peo- 
ple of  the  United  States,  not  to  the  people  of  a  single 
state,  for  their  adoption  and  ratification.  It  was  not 
offered  for  the  adoption  and  ratification  of  the  several 
states  in  their  sovereign  capacity,  in  w^hich  capacity  they 
had  previously  assented  to  the  articles  of  confederation, 
but  to  the  people  of  the  entire  country,  acting  upon  their 
individual  will  and  responsibility.  The  people,  in  fact, 
through  this  convention,  and  the,  instrument  which  the 


1!7G  Tin;   science   of   government. 

convention  had  prepared  and  recommended,  proposed  to 
the  several  states,  that  they  should  surrender  and  volun- 
tarily relincjuish  some  portion  of  the  power  of  the  sove- 
reignty with  which  they  were  clothed  ;  that  the  people, 
upon  such  surrender  and  relinquishment  of  power,  would 
establish  a  second  or  another  government,  upon  which  the 
power  and  sovereignty  relinquished  should  be  conferred. 
This  additional  government  was  designed  to  be  a  gov- 
ernment of  the  entire  people  of  the  United  States,  whose 
sovereignty  and  authority  should  not  be  bounded  by 
state  lines,  but  should  be  commensurate  with  the  terri- 
tory which  belonged  to  the  several  states.  This  was  not  a 
matter  of  force,  but  of  voluntary  action  ;  the  several  states 
were  not  obliged  to  submit  to  this  diminution  of  their 
authority  ;  they  were  not  obliged  to  yield  to  the  creation 
of  another  and  independent  government,  which  should 
assume  a  portion  of  the  jurisdiction  which  they  had  ex- 
ercised. The  state  governments,  however,  were  govern- 
ments of  the  people  ;  and  they  yielded  to  their  request,  to 
their  moral  power,  by  permitting  the  proposed  constitu- 
tion to  be  submitted  to  them  for  their  adoption  and  rati- 
fication. To  carry  this  project  into  effect,  the  people, 
acting  in  conventions  assembled  in  the  different  states, 
accepted  the  constitution  proposed,  and  thereby  the  fede- 
ral government  came  into  existence  as  an  independent 
sovereignty,  to  the  extent  of  the  powers  conferred. 
Many  of  the  provisions  contained  in  the  articles  of  con- 
federation w^ere  substantially  inserted  in  the  constitu- 
tion. The  great  difference  consisted  in  the  substitution 
of  a  government  clothed  with  power  to  exercise  its 
trusts,  with  machinery  and  departments  of  its  own,  ade- 
quate to  their  execution,  in  the  place  and  instead  of  a 
treaty,  compact,  or  alliance  between  different  govern- 
ments, dependent  for  their  performance  upon  their  indi- 
vidual will  and  good  faith.     Prior  to  the  adoption  of  the 


THE     SCIENCE     OF     GOVERNMENT.  277 

constitution,  as  has  been  already  stated,  the  depositories 
of  power  were  two,  the  people  and  the  state  sovereignty. 
By  an  adoption  of  the  constitution,  the  number  of 
these  depositories  of  power  was  increased  to  three :  the 
people,  the  state  government,  and  the  federal  govern- 
ment. By  the  cooperation  of  these  depositories  of  power, 
your  rights  are  sustained,  your  wrongs  are  compensated, 
and  the  trusts  of  government  are  executed. 

In  attempting  to  show,  that  the  government  of  the 
United  States  is  a  government  of  the  people,  and  not  of 
the  several  states,  I  have  not  forgotten  that  the  several 
states  in  their  sovereign  capacity,  under  certain  restric- 
tions and  limitations,  choose  the  senators  of  the  United 
States,  and  in  so  doing  elect  the  members  of  one  branch 
of  one  department  of  the  federal  government.  This  does 
not  and  cannot  change  or  diminish  the  power  or  capa- 
city of  the  federal  government,  which  does  not  depend, 
in  these  particulars,  upon  the  implements  or  means  by 
which  one  part  of  its  construction  is  furnished,  but  it  de- 
pends upon  the  instrument  which  defines  its  powers.  It 
depends,  so  to  speak,  upon  its  charter.  Regarding  the 
two  governments,  the  state  and  the  national,  as  they  have 
been  described  in  previous  lectures,  you  will  easily  per- 
ceive and  understand  the  simplicity  and  certainty  with 
which  their  several  and  respective  action  is  regulated. 
The  federal  government  is  charged  and  intrusted  with 
the  performance  of  certain  prescribed  trusts  or  duties, 
operating  upon  and  for  the  entire  people  of  the  United 
States.  But  its  power  does  not  extend  to  the  ordinary 
business  operations  of  the  community,  which  are  of  a 
local  character ;  so  that,  if  no  other  than  the  federal 
government  existed,  the  people  in  these  particulars  of 
daily  concernment,  and  which  constitute  the  principal 
objects  of  civil  society,  would  be  left  to  themselves  with- 
out government.     To  avoid  this,  the  state  government 


278  THE     SCIENCE     OE     G  0  \  EllNM  ENT. 

intervenes,  and  regulates  the  matters  not  confided  to  the 
federal  government.  The  result  of  the  system,  as  it  has 
been  established,  is,  you  live  under  two  governments,  each 
independent  within  its  constitutional  limit,  of  the  action 
of  the  other,  each  acting  upon  you,  and  upon  your  inter- 
ests, in  certain  different  particulars,  to  accomplish  differ- 
ent individual  purj^oses,  but  witii  and  for  the  same  general 
intent,  which  is  your  protection  and  security,  at  home 
and  abroad,  in  the  enjoyment  of  all  the  rights  which  civil 
society  and  its  institutions  can  furnish. 

Whenever  two  governments  are  mentioned,  or  refer- 
ence is  made  to  several  governments,  as  distinct,  indepen- 
dent sovereignties,  the  mind  ordinarily  and  naturally  re- 
gards them  as  foreign  to  each  other.  This  cannot  be  said 
of  the  federal  and  state  governments,  in  the  sense  in 
which  the  term  foreign  is  used  in  its  application  to  gov- 
ernments. The  federal  and  state  sovereignties,  are  not 
hostile  or  adverse  to  each  other ;  they  cannot  be  hostile 
or  adverse  to  each  other,  as  foreign  nations,  each  control- 
ling a  different  territory  and  people,  may  be  hostile  or 
adverse  to  each  other.  They  cannot  and  do  not  nego- 
tiate wuth  each  other  b}^  treaties  or  embassies.  They 
cannot  assume,  in  relation  to  each  other,  a  state  of  war. 
Although  these  two  sovereignties  are  distinct  and  inde- 
pendent of  each  other,  they  exercise  jurisdiction  over 
the  same  territory  and  over  the  same  people.  The  citi- 
zens or  subjects  of  an  individual  state,  are  also  citizens  or 
subjects  of  the  federal  government.  The  state  and  fede- 
ral sovereignties  are  not  superior  the  one  to  the  other ; 
in  this  respect,  they  enjoy  the  same  relative  equality 
which  is  conceded  to  different  foreign  nations.  Notwith- 
standing the  restrictions  imposed  upon  state  authorit}^  in 
some  particulars,  and  although  it  has  been  said,  and  can 
be  said  with  truth,  that  the  laws  of  the  United  States  are 
supreme,  and  those  of  a  state  which  may  conflict  there- 


THE     SCIENCE     OF     GOVERNMENT.  279 

with  must  yield,  these  restrictions  and  such  declaration 
do  not  import  superiority  or  inferiority.  The  restrictions 
are  designed  to  mark  and  define  the  boundary  which  ex- 
ists between  the  government  or  jurisdiction  of  a  state, 
and  the  jurisdiction  of  the  national  sovereignty. 

It  may  be  said  of  a  statute  or  law  of  a  state,  constitu- 
tionally made,  that  it  is  supreme  ;  that  a  statute  of  the 
United  States,  in  opposition  or  in  conflict  with  such  con- 
stitutional state  statute,  would  be  regarded  void  and  in- 
operative. If  the  legislative  department  of  an  individual 
state  declare,  that  a  deed  shall  not  be  effectual  to  pass 
title  to  land,  situate  within  the  jurisdiction  of  such  state, 
unless  executed  in  the  presence  of  two  witnesses,  an  act 
of  congress  saying  that  the  title  may  be  passed  by  an  in- 
strument executed  in  the  presence  of  one  witness,  would 
be  inoperative  and  void,  because  the  acquisition  of  title 
to  land  within  an  individual  state,  is  a  matter  of  state  re- 
gulation exclusively.  The  true  position  is,  that  the  state 
and  federal  sovereignties,  in  relation  to  the  different  trusts 
severally  confided,  are  alike  supreme,  and  the  law  of  each, 
in  relation  to  its  several  trusts,  is  the  supreme  law  of  the 
land.  The  constitution  of  the  United  States,  and  the  con- 
stitution of  the  commonwealth  of  Massachusetts,  so  far 
as  they  relate  to  the  commonwealth  and  to  its  citizens, 
must  be  regarded  as  papers  or  charters,  each  exclusive  of 
the  other,  relating  to  different  parts  of  the  same  general 
system,  by  which  the  rights  and  duties  of  the  citizens  of 
Massachusetts  are  ascertained.  These  constitutions  may 
be  regarded  as  different  parts,  if  I  may  so  say,  of  one  and 
the  same  instrument,  when  applied  to  citizens  or  residents 
of  Massachusetts,  each  supreme  within  its  limit,  that  is,  in 
relation  to  the  matters  severally  confided.  The  constitu- 
tion of  the  United  States  and  the  constitution  of  Ver- 
mont, constitute  the  fundamental  law  of  that  state  ;  so 
of  every  other  state,  add  to  its  constitution  that  of  the 


280  THE    SCIENCE     OF     GOVERNMENT. 

United  States,  and  its  government  i.s  defined.  If  you  no 
consider  these  constitutions,  you  will  discover  a  system  of 
government  composed  of  two  independent  political  insti- 
tutions or  sovereignties,  intrusted  with  distinct  and  dif- 
ferent, but  limited  powers,  and  you  will  readily  under- 
stand the  relation  which  these  two  political  institutions 
maintain,  severally  the  one  to  the  other.  You  will  also 
find  the  existence  of  three  depositories  of  power,  the 
people,  the  state,  the  federal  government.  I  have  at- 
tempted to  show,  that  the  state  and  the  union  are  inde- 
pendent of  each  other ;  that  they  are  independent  only 
so  far  as  they  are  content  each  to  perform  its  own  duty. 
I  have  shown,  that  certain  restrictions  have  been  imposed 
upon  state  authority,  some  of  which,  those  which  exclude 
a  state  from  the  management  of  the  foreign  relations  of 
the  country,  that  which  prohibits  a  state  from  any  en- 
largement of  its  territory  without  the  consent  of  congress, 
are  of  a  political  character ;  others  relate  to  the  mainte- 
nance and  security  of  private  right.  These  restrictions, 
to  some  extent,  afford  the  means,  from  which  may  be  de- 
duced the  relation  or  boundary  of  the  two  sovereignties. 
If  either  sovereignty  at  any  time,  as  may  be  supposed, 
shall  have  encroached  upon  the  other,  the  federal  sove- 
reignty has,  and  from  necessity  must  have,  the  final  and 
conclusive  power  of  decision. 

The  relation  which  subsists  between  the  several  states, 
is  different  from  that  which  they  severally  sustain  to  the 
union.  Prior  to  the  adoption  of  the  federal  constitution, 
they  were  independent  of  each  other,  bound  by  no  ex- 
ternal obligation  or  law,  except  the  law  of  nations,  as  ap- 
plied or  applicable  to  different  sovereignties  in  their  in- 
tercourse with  each  other.  The  articles  of  confederation 
which  were  originally  adopted,  were  mere  matters  of  con- 
tract, of  agreement,  in  the  nature  of  treaty  stipulations. 
The  several  states,  independent  of  such  agreement,  were 


THE     SCIENCE     OF     GOVERNMENT.  281 

foreign  to  each  other.  By  the  adoption  of  the  federal 
constitution,  the  extent  of  state  sovereignty  was  dimin- 
ished, by  a  surrender  to  the  people,  and  a  transfer  by 
the  people  to  the  union.  The  independence  of  the  sev- 
eral states  in  relation  to  their  reserved  powers  is  perfect, 
notwithstanding  the  constitution  of  the  United  States, 
and  they  are  now  as  formerly  foreign  to  each  other,  di- 
vested of  the  power  or  authority  of  making  political  con- 
tracts between  themselves  or  with  other  foreign  nations. 
The  surrender  of  sovereignty  which  was  made,  did  not 
enlarge  the  sovereignty,  or  enure  to  the  benefit  of  the 
several  states,  in  their  individual  character  or  capacity ;  it 
enured  to  the  federal  jurisdiction.  As  a  compensation 
for  the  surrender,  and  as  protection,  the  federal  sove- 
reignty undertook  and  engaged  to  guarantee  to  every 
state  in  the  union  a  republican  form  of  government,  and 
to  protect  every  state  from  invasion  or  insurrection.  If 
any  state  shall  make  an  inroad  upon  another,  or  shall  at- 
tempt to  change  or  subvert  its  form  of  government,  the 
federal  sovereignty  is  bound  to  suppress  such  inter- 
ference.'-' 

That  the  states  are  foreign  to  each  other  as  political 
institutions  or  sovereignties,  has  been  determined  by  the 
federal  judiciary,  in  a  case  which  arose  upon  a  bill  of 
exchange,  drawn  by  a  citizen  of  one  state,  upon  a  resi- 


*  The  mode  in  which  the  federal  jurisdiction  is  to  uphold  a  republican  form 
of  government  in  the  several  states,  has  not  been  prescribed.  Whenever  it 
shall  be  the  subject  of  discussion,  for  the  purpose  of  its  execution,  difficulty  and 
embarrassment  will  be  the  result.  The  question  has  not  arisen,  and  probably 
may  not  arise.  What  constitutes  a  republican  form  of  government,  is  not  a 
matter  susceptible  of  an  exact  and  precise  definition.  If  any  state  should  in- 
graft upon  or  insert  in  its  constitution  a  provision  subversive  of,  and  at  variance 
with,  a  repviblican  form  of  government,  SQ  far  as  it  may  operate  upon  individual 
personal  rights,  the  judiciary  of  the  United  States,  with  the  aid  of  legislation 
by  .the  congress  of  the  United  States,  might  probably  afford  protection.  The 
most  decisive  and  effectual,  perhaps  the  only  effectual  remedy,  in  any  slich  con- 
tingency, must  be  found  in  the  intelligence  and  integrity  of  the  people. 

36 


28'2  THE    SCIENCE    OF    GOVERNMENT. 

dent  or  citizen  of  another  state.  In  the  discussion  had 
upon  this  subject,  the  court  say,  for  all  national  purposes 
embraced  by  the  federal  constitution,  the  several  states 
and  the  citizens  thereof  are  one,  united  under  the  same 
sovereign  authority,  and  governed  by  the  same  laws.  In 
all  other  respects,  the  states  are  necessarily  foreign  to, 
and  independent  of  each  other.  Their  constitutions  and 
forms  of  government  being,  although  republican,  alto- 
gether different,  as  are  their  laws  and  institutions.  Mr. 
Justice  Story,  in  a  treatise  written  by  him  upon  this  sub- 
ject, says,  "  This  doctrine  is  founded  upon  clear  and 
determinate  principles ;  for  not  only  has  each  state  a  sep- 
arate and  distinct  municipal  jurisprudence,  founded  upon 
its  customary  or  common  law,  or  statutable  enactments ; 
but  each  state  is  absolutely  sovereign  in  its  political  or- 
ganization, government,  and  dominion,  saving  and  except- 
ing onl}'  so  far  as  there  is  a  limited  supreme  sovereignty 
conferred  upon  the  national  government  by  the  constitu- 
tion of  the  United  States." 

The  laws  of  a  state  have  no  force  or  effect  in  any  other 
state,  except  so  far  as  the  constitution  of  the  United 
States  may  give  effect  to  them.  The  process  of  a  state 
in  its  force  and  effect,  is  limited  to  the  state  within  and 
by  which  it  may  be  issued.  Each  state,  in  fact,  regulates 
its  own  domestic  affairs,  without  any  restraint  imposed  by 
the  legislation  or  local  habits  or  institutions  of  any  other 
state.  In  all  these  particulars  they  act  as  foreign  to  each 
other,  and  are  to  be  so  regarded.  In  some  instances,  the 
states  voluntarily  enact  statutes  in  language  copied  or 
borrowed  from  the  language  of  a  statute  of  another  state. 
This  has  been  done,  in  some  instances,  in  relation  to  a 
class  of  contracts  required  to  be  in  writing,  and  also  in 
relation  to  Avills,  the  descent  of  estates  and  mortgages  of 
personal  property.  The  several  states  are  not  only  for- 
eign to  each  other,  but  as  a  general  proposition  they  are 


THE     SCIENCE     OF     GOVERNMENT.  283 

severally  independent  of  each  other.  As  sovereignties 
or  political  institutions,  they  are  absolutely  independent 
of  each  other,  under  all  circumstances.  In  other  words, 
I  mean  to  say,  that  no  state  by  virtue  of  its  sovereignty 
can  impose  any  restraint,  restriction,  or  obligation  upon 
any  other  state.  The  independence  of  a  state,  however, 
is  limited  to,  and  confined  by  a  qualified  extent  of  juris- 
diction, and  to  the  same  extent  as  it  has  surrendered  its 
sovereignty,  by  permitting  a  transfer  of  certain  powers 
to  the  union,  inasmuch  as  by  such  transfer,  it  has  volun- 
tarily diminished  the  subjects  upon  which  its  power  might 
otherwise  have  been  exercised.  By  the  constitution  of 
the  United  States,  certain  effect  is  given  to  the  acts  and 
proceedings  of  every  state,  in  every  other.  If  this  is  dis- 
regarded by  any  state,  or  by  its  departments,  the  remedy 
or  correction  is  by  resort  to  the  judiciary  of  the  United 
States,  and  not  by  an  attempt  on  the  part  of  a  state  to 
correct  by  its  own  agency  any  supposed  disregard  of  its 
rights  by  another  state.  The  relation  between  the  seve- 
ral states  is  in  every  instance  regulated  by  law,  and  is  to 
be  preserved  and  maintained  by  the  adoption  of  legal 
remedies  or  measures ;  it  is  not  and  cannot  rightfully  be, 
under  any  condition  of  things,  a  relation  of  force,  or  of 
hostility.  The  constitution  of  the  United  States  pro- 
vides, that  "  full  faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  state.  And  the  congress  may,  by  general 
laws,  prescribe  the  manner  in  which  such  acts,  records, 
and  proceedings  shall  be  proved,  and  the  effect  thereof." 
This  provision  has  been  carried  into  effect  by  the  legisla- 
tion of  congress  so  far  as  its  action  was  essential.  As 
matter  of  public  law,  the  acts,  records,  and  judicial  pro- 
ceedings of  a  country  have  no  force  or  effect  in  any  other 
country,  except  such  as  may  be  conceded  as  matter  of 
comity,  and  whenever  relied  upon  in  a  foreign  jurisdic- 


284  THE     SCIENCE     OF    GOVERNMENT. 

tion,  they  must  be  proved,  as  any  other  fact  or  matter  is 
the  subject  of  proof  This  article  in  the  constitution  was 
designed  to  produce  harmony  between  the  several  states, 
and  to  avoid  inconveniences  which  otherwise  might  result 
from  the  intimacy  and  business  operations  existing,  and 
which  would  be  carried  on  between  the  citizens  of  the 
different  states.  If  the  right  of  one  individual  against 
another,  over  both  of  whom  the  judiciary  of  a  state  shall 
acquire  jurisdiction,  shall  be  ascertained  and  determined 
by  such  judiciary,  the  right  between  the  parties  is  conclu- 
sively adjudicated,  and  in  the  absence  of  fraud,  will  be 
upheld  in  every  other  state  of  the  union.  This  proceeds 
upon  the  ground,  that  a  judgment  obtained  in  the  court 
of  a  state  is  not  to  be  regarded  in  the  courts  of  the  other 
states  as  a  foreign  judgment,  or  merely  as  evidence  to 
sustain  an  action,  but  is  to  be  regarded  as  conclusive 
upon  the  merits  of  the  matter,  upon  the  rights  of  the 
parties. 

A  judgment  obtained  in  one  state  cannot  be  enforced 
in  another  state  by  process  from  the  state  court  in  which 
the  judgment  may  be  rendered,  because  the  process  of 
every  state  is  limited  in  its  operation,  to  and  within  its 
own  territory.  If  parties  litigate  their  rights,  in  the 
commonwealth  of  Massachusetts,  in  a  court  of  the  state, 
the  determination,  assuming  that  the  court  shall  acquire 
jurisdiction  of  the  parties  and  of  the  subject-matter,  is 
conclusive,  and  will  be  so  regarded  in  every  other  state ; 
but  when  sought  to  be  enforced,  and  made  available  in 
another  state,  the  remedy  must  be  in  accordance  with  the 
law  of  the  state  in  which  it  is  sought  to  be  enforced. 
This  does  not  impair  or  lessen  the  dignity  or  sovereignty 
of  either  state  ;  the  right  only  of  the  parties  is  determined. 
The  provision  of  the  constitution  to  which  reference  has 
been  made,  is  designed  to  prevent  unreasonable  inconve- 
nience and  difficulty  to  individuals,  which   must   have 


THE     SCIENCE     OF     GOVERNMENT.  285 

resulted  if  a  different  system  prevailed  in  this  respect. 
If  parties  litigate  their  rights  in  England,  or  any  other 
foreign  country,  by  judicial  proceedings  in  an}^  court, 
except  in  one  which  acts  upon  principles  of  international 
law,  the  adjudication  of  such  foreign  court  would  not  be 
regarded  in  the  courts  of  this  country  as  conclusive  upon 
the  merits,  but  would  be  regarded  simply  as  presumptive 
evidence  of  the  right.  Such  is,  undoubtedly,  the  law  as 
expounded  by  the  judicial  tribunals  of  the  several  states. 
Many  eminent  legal  writers  have  maintained  a  contrary 
theory,  assuming  that  a  right  judicially  ascertained  by  a 
competent  court,  should  be  regarded  as  conclusively  set- 
tled in  the  absence  of  fraud,  and  should  be  so  regarded 
everywhere.  This  view  of  the  subject,  if  considered  and 
determined  upon  logical  principles,  without  reference  to 
the  decisions  of  courts,  is  undoubtedly  the  correct  view. 
The  relation  of  the  states  to  each  other  is  modified  and 
controlled,  in  a  matter  of  great  importance,  by  a  provi- 
sion in  the  constitution  of  the  United  States  which  was 
designed  to  promote  the  peace  and  harmony  of  the  coun- 
try. The  article  to  which  reference  is  made,  says,  "  the 
citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  of  the  several  states."  This 
provision,  practically,  has  been  carried  into  effect,  although 
its  import  and  effect  has  not  been  the  subject  of  consid- 
eration or  of  adjudication  in  the  courts  of  the  United 
States.  Every  independent  sovereignty,  ordinaril}^,  has 
the  exclusive  authority  and  power  to  determine  for  itself 
who  shall  and  who  shall  not  enter  its  territory,  and  to 
say  how  far  those  who  may  be  permitted  to  enter,  shall 
be  allowed  the  immunities  and  privileges  of  the  country. 
This  right  is  essential  to  the  safety  of  every  community, 
and  depends  upon  the  same  principle  upon  which  it  has 
been  said,  that  the  house  of  every  individual  is  his  castle. 
As  matter  of  fact,  every  civilized  government  is  accus- 


28G  THE     SCIENCE     OF     GOVERNMENT. 

tomed  to  permit  the  citizens  of  other  countries  to  enter 
its  territory.  In  some  instances,  and,  generally,  passports 
are  required,  not  for  the  purpose  of  imposing  trouble- 
some and  useless  restraints,  but  to  obtain  some  assurance 
that  the  individual  may  be  admitted,  without  danger  to 
the  institutions,  or  to  the  repose  of  the  country,  whose 
comity  he  is  allowed  to  enjoy.  An  individual,  admitted 
within  the  territory  of  a  country  not  his  own,  impliedly 
undertakes  to  demean  himself  so  as  not  to  endanger  the 
sovereignty,  whose  comity  and  hospitality  may  be  ex- 
tended to  him.  An  individual  thus  admitted,  for  the  time 
being,  is  subject  to  the  law  of  the  country  in  which  he  is 
allowed  a  temporary  sojourn,  and  if  he  violate  such  law, 
he  is  amenable  to  its  penalties ;  he  is  also  responsible  to 
individuals,  so  far  as  he  may  attempt  to  interfere  with  their 
ri2:hts.  The  o-overnment  which  thus  admits  a  stranojer, 
may  at  any  time,  with  or  Avithout  reason,  require  him 
to  leave  its  territory  ;  but  such  government  is  bound,  so 
long  as  he  remains  under  license  express  or  implied,  to 
protect  him  from  all  improper  violations  of  his  pro2)erty, 
or  character,  or  person.  The  right  of  refusing  or  admit- 
ting ingress,  must  be  regarded  as  appertaining  to  the 
sovereign  power,  Avithout  the  possession  of  which  a  gov- 
ernment must  be  regarded  as  imperfect.  The  several 
states,  so  far  as  the  citizens  thereof  are  concerned,  except 
in  relation  to  paupers  and  criminals,  who  may  pass  from 
one  state  to  another,  have  no  discretion  or  power  in  this 
respect.  The  citizens  of  any  and  of  every  state  in  the 
American  union,  have  a  right  in  every  other  state  to  the 
immunities  and  privileges  thereof,  if  they  elect  to  avail 
of  them.  A  state,  therefore,  has  imposed  upon  it  an  oljli- 
gation  to  receive  the  citizens  of  the  other  states  within 
its  territory,  which  it  cannot  rightfully  avoid  or  resist. 
The  citizens  of  the  several  states  may  change  their  resi- 
dence and  citizenship  from  one  state  to  another  at  plea- 


THE     SCIENCE     OF     GOVERNMENT.  287 

sure,  not  as  matter  of  grace  or  comity,  but  as  of  right. 
The  clause  of  the  constitution  to  which  your  attention 
has  been  requested,  has  been  the  basis  of  much  discussion, 
has  been  used  and  rehed  upon  as  an  authority  for  theories 
and  assumptions  which  have  no  legal  existence,  which 
cannot  be  sustained.  In  one  aspect,  a  provision  which 
requires  a  government  or  jurisdiction  to  receive  within 
its  territory  a  certain  class  of  individuals,  may  well  be 
regarded  as  an  unreasonable  and  unwarrantable  interfer- 
ence with  its  independence.  The  effect  of  this  is  modi- 
fied somewhat  by  the  fact  that  the  individuals  of  one 
state,  thus  admitted  and  received  in  another,  are  of  similar 
habits  and  interests,  and  belong  to  the  same  country.  A 
more  important  consideration  connected  with  the  subject, 
is  deduced  from  the  character,  from  the  extent  of  the 
privileges  and  immunities  extended.  The  citizen  of  one 
of  the  several  states  when  he  enters  another  state,  under 
the  provision  by  which  the  right  is  conferred,  has  the  same 
immunities  and  privileges  as  are  enjoyed  by  the  citizens 
of  the  state  into  which  he  enters.  Whenever  citizens  of 
the  United  States  transfer  their  citizenship  from  one  state 
to  another,  they  do  not  transfer  the  rights  which  depend 
for  their  existence  upon  the  law  of  the  state  from  which 
they  transfer  themselves.  The  privileges  and  immuni- 
ties, which  they  may  have  enjoyed  in  the  state  which 
they  abandon,  do  not  attend  them ;  they  do  not  take 
with  them  the  law  or  the  institutions,  or  the  protection  of 
the  state  from  which  they  recede.  By  an  abandonment 
of  a  state,  its  peculiar  and  local  advantages  are  renounced, 
and  cannot  be  resumed  in  another  state.  A  citizen  of 
South  Carolina,  under  the  shield  of  the  constitution  of 
the  United  States,  may  become  a  citizen  of  Massachusetts, 
and  may  enjoy  the  privileges  and  immunities  which  ap- 
pertain to  a  citizen  of  Massachusetts ;  but  he  cannot  in 
Massachusetts  enjoy  the  privileges  and  immunities  which 


'J  8  8  THE     SCIKNCJ';     OF     (iUVKIlNMKNT. 

a  citizen  of  South  Carolina  may  have,  by  force  of  its  law 
or  local  institutions.  This  fact  is  of  the  utmost  impor- 
tance, and  should  never  be  forgotten  or  disregarded.  In 
a  particular  state,  the  legal  rate  of  interest  may  be  seven  « 
or  ten  per  cent.,  in  another  it  may  be  six  per  cent.  If  a 
citizen  of  a  state  where  the  legal  rate  of  interest  is  ten 
per  cent.,  shall,  under  the  constitution  of  the  United 
States,  become  a  citizen  of  a  state  in  which  only  six  per 
cent,  is  allowed  by  law,  he  must  be  content  in  his  new 
residence,  to  negotiate  his  money  for  six  per  cent.,  the 
rate  within  the  state  of  which  he  has  become  a  citizen, 
and  under  whose  laws  his  contracts  are  upheld.=^=  The 
principle  is  sustained,  and  is  susceptible  of  illustration, 
from  a  great  variety  of  other  propositions  of  similar  im- 
port, which  will  readil}^  occur  to  you,  in  relation  to  which 
the  result  is  and  must  be  the  same,  as  it  is  in  the  instance 
which  I  have  presented.  It  is  difficult  to  perceive  how 
any  mind  conversant  with  our  institutions  can  dissent ; 
it  has,  nevertheless,  been  the  subject  of  error  and  mistake 
in  opinions  which  have  been  put  forth. 

The  new  state  of  California  has  many  inducements 
and  attractions,  some  substantial  and  real,  others  falla- 
cious. It  has  been  said,  and  may  be  said,  that  the  citizens 
of  every  the  several  states,  have  equal  right  to  become 
citizens  of  California  ;  this  is  true.  A  citizen  of  Georgia,  or 
of  any  other  state,  has  so  much  and  the  same  right  to  go 
there  as  a  citizen  of  Massachusetts  can  have  ;  neither  the 
one  nor  the  other  can  carry  with  him  the  law  of  the 
state  which  he  may  leave.'--     Every  state  regulates  its 


*  If  a  contract  is  made,  by  wliicli  interest  is  payable  in  a  state  where  ten  or 
seven  per  cent,  is  the  legal  rate,  which  shall  subseiiuently  be  enforced  in  a  state 
in  which  the  legal  interest  is  only  six  per  cent.,  the  interest  allowed  by  the  law 
where  the  contract  is  made,  will  be  allowed  as  an  incident  or  part  of  the  con- 
tract. 

t  Himes  i-.  Howes,  13  Met.  Rep.  80.     "  An  indenture,  by  which  the  child  of  a 


THE     SCIENCE     OF     GOVERNMENT.  289 

own  internal  affairs  in  accordance  with  its  own  judgment, 
and  those  who  enjo}'^  the  immunities  thereof,  either  by 
comity  or  right,  cannot  introduce  or  set  up  any  foreign 
power  or  authority  as  the  standard  of  right.  In  many  of 
the  several  states,  privileges  and  immunities  are  con- 
ferred or  recognized  by  law,  which  are  not  and  cannot 
be  set  up  or  exercised  in  other  states.  The  diminution 
of  sovereignty,  to  which  reference  has  been  made,  is  a 
matter  of  consent  on  the  part  of  the  several  states  ;  it  is  a 
result  of  the  union.  By  the  establishment  of  a  national 
government,  a  portion  of  the  prerogatives  which  natu- 
rally belong  to  a  sovereign  state,  has  been  surrendered,  for 
the  purpose,  among  other  things,  of  a  more  perfect  bond 
of  union  between  the  citizens  of  the  several  states.  The 
citizens  of  the  United  States,  as  citizens  of  the  federal 
government,  are  one  and  indivisible.  It  is,  therefore,  fit 
and  convenient  that  they  be  allowed  to  pass  from  one 
state  to  another,  as  their  business,  their  interests,  or  as  the 
accidents  and  incidents  of  life  may  require.  If  they  avail 
of  this  j)rivilege,  and  transfer  themselves  from  one  state 
to  another,  it  is  not  for  the  purpose  of  transferring  the 
law  or  the  institutions  of  a  state  to  another,  but  simply 
to  transfer  themselves.  Notwithstanding  the  right  which 
appertains  to  the  citizens  of  every  state,  at  their  election, 
to  become  citizens  of  any  other  state,  limitations  upon 

town  pauper,  in  Rhode  Island,  is  bound  by  the  overseers  of  the  poor,  conformably 
to  the  law  of  that  state,  as  an  apprentice  to  a  citizen  of  this  state,  is  not  valid  here, 
although  the  statute  of  Rhode  Island  authorized  the  overseers  to  bind  the  party 
to  a  citizen  of  Rhode  Island  or  to  a  citizen  of  Massachusetts."  The  princi- 
ple of  this  decision  has  been  repeatedly  recognized  in  the  English  courts.  The 
overseers  of  the  poor  in  Massachusetts  are  authorized  to  bind  certain  persons 
as  apprentices,  under  a  law  similar  to  that  of  Rhode  Island,  except  it  contains 
no  express  provision,  authorizing  a  binding  out  of  the  state,  as  does  the  Rhode 
Island  statute.  If  the  master  of  an  apprentice,  bound  to  him  by  the  law  of 
one  state,  voluntarily  transfers  himself  and  apprentice  to  another  state,  the  ap- 
prentice is  thereby  released,  although  similar  apprenticeship  is  permitted  by  the 
law  of  the  state  to  which  he  may  have  been  transferred. 

37 


200  THE     SCIENCE     UF     GOVERNMENT. 

this  right  undoubtedly  do  and  may  exist.  A  state  may 
rightfully,  as  a  matter  of  self-preservation,  exclude  crimi- 
nals and  paupers  from  its  territory,  whether  they  come 
from  a  foreign  country  or  from  a  sister  state.  This  is  in 
accordance  with  an  admitted  universal  principle,  that 
every  political  right  under  our  system  is  qualified,  and 
cannot  be  arbitrarily  set  uj),  to  the  destruction  of  society 
or  of  political  institutions.  Another  right  of  independent 
sovereignties,  foreign  to  each  other,  is  that  of  making 
treaties  and  political  contracts  with  each  other.  The 
several  states,  although  foreign  to  each  other  in  many 
particulars,  cannot  be  regarded  in  this  respect  as  in  the 
possession  of  such  relation.  They  cannot  enter  into 
treaties  with  each  other ;  they  cannot,  as  sovereignties, 
make  any  contract  between  themselves  of  a  sovereign  or 
political  character.  All  contracts  and  arrangements  of  this 
description,  between  the  several  states,  and  between  them 
and  foreign  governments,  are  exclusively  matters  which 
appertain  to  the  federal  government.  Another  matter 
of  sovereignty,  is  the  power  of  regulating  contracts  be- 
tween its  citizens  and  those  of  other  governments.  In 
this  particular  the  power  of  the  several  states,  to  some 
extent,  is  controlled.  No  state  can  pass  a  law,  whereby 
the  obligation  of  contract  shall  be  impaired.  No  govern- 
ment, conducted  upon  correct  principles,  would  attempt 
thus  to  interfere  with  or  destroy  private  right.  But  the 
constitution  of  the  United  States  has  not  trusted  to  the 
faith  and  fidelity  of  the  state  governments ;  ujDon  this  sub- 
ject, it  has  guarded  right  by  an  express  provision.  This 
provision  is  not  exclusively  for  the  benefit  of  the  citizens 
of  a  state,  in  their  negotiations  carried  on  with  the  citizens 
of  another  state,  but  it  extends  to  all  contracts  without 
reference  to  the  parties.  It  results,  therefore,  that  a  state 
cannot  impair  the  obligation  of  contracts  made  by  and 
between  its  own  citizens,  any  more  than  it  can  of  con- 


THE    SCIENCE     OF     GOVERNMENT.  291 

tracts  made  by  its  citizens  with  citizens  of  other  states,  or 
with  the  citizens  of  foreign  countries ;  the  restriction 
apphes  to  all  contracts.  Another  essential  element  of 
sovereignty  is  connected  with  the  right  or  obligation  of 
tradition.  Between  foreign  nations,  independent  of  con- 
tract between  them,  a  nation  is  not  obliged  to  surrender 
any  person  or  persons  found  within  its  jurisdiction.  A 
nation  cannot,  by  its  agents  or  officers,  enter  the  territory 
of  another,  forcibly  and  against  its  consent,  in  pursuit  of 
its  own  subjects.  This  results  from  the  fact,  that  the  ter- 
ritory of  every  sovereignty  is  exclusively  its  own.  The 
same  principle  is  applicable  to  a  supposed  right  of  search, 
in  time  of  peace,  of  vessels  upon  the  high  seas.  The 
deck  of  every  vessel  is,  in  contemplation  of  law,  the  ter- 
ritory of  the  sovereignty  under  whose  flag  it  sails.  To 
avoid  the  inconvenience  of  this  principle  of  public  law, 
foreign  nations,  in  modern  times,  have  entered  into  nego- 
tiations, by  which,  under  certain  restrictions,  they  have 
agreed  each  to  surrender  to  the  other  the  citizens  or  sub- 
jects of  such  other.  Notwithstanding  the  principle  of 
public  law  to  which  reference  has  been  made,  a  nation  can- 
not rightfully  entice  the  citizens  or  subjects  of  its  neigh- 
bour, or  seduce  them  from  their  allegiance ;  such  inter- 
ference by  one  government  with  the  subjects  of  another, 
would  be  regarded  as  just  cause  of  complaint  and  animad- 
version. With  equal  truth  it  must  be  said,  that  a  gov- 
ernment cannot  rightfully  permit  its  territory  to  be  used 
by  foreigners,  or  by  its  own  citizens,  as  a  retreat  or  cita- 
del, from  which  to  send  forth  marauders  upon  the  peace 
and  quiet,  or  institutions  of  another  sovereignty.  This 
right  of  tradition  is  not  a  matter  of  state  arrangement, 
but  appertains  exclusively  to  the  federal  sovereignty. 
So  far  as  it  relates  to  the  several  states,  in  their  relation 
with  each  other,  the  constitution  of  the  United  States 
has  provided,  that  "  a  person,  charged  in  any  state  with 


292  THE     SCIENCE     OF     GOVERNMENT. 

treason,  felony,  or  other  crime,  who  f«hall  tlee  from  jus- 
tice, and  be  found  in  another  state,  shall,  on  demand 
of  the  executive  authority  of  the  state  from  which  he 
fled,  be  delivered  up  to  be  removed  to  the  .state  having 
jurisdiction  of  the  crime."  "  No  person,  held  to  service  or 
labor  in  one  state  under  the  laws  thereof,  escaping  into 
another,  shall  in  consequence  of  any  law  or  regulation 
therein,  be  discharged  from  such  service  or  labor,  but 
shall  be  delivered  up  on  claim  of  the  party  to  whom  such 
service  or  labor  may  be  due." 

This  clause  in  its  effect  is  exceedingly  simple.  It  pro- 
vides, that  no  person  legall}-  subject  to  the  jurisdiction  of 
a  particular  state,  shall,  by  escaping  therefrom,  avoid  or 
resist  the  obligations  which  such  jurisdiction  may  have 
imposed  upon  him.  The  clause  operates  a  diminution  of 
the  sovereignty,  in  this  particular,  of  the  several  states  in 
their  relation  and  intercourse  with  each  other.  The  lim- 
itations and  restrictions  upon  state  sovereignty,  in  their 
relation  to  and  with  each  other,  imposed  by  the  constitu- 
tion of  the  United  States,  are  not  designed,  and  do  not 
operate,  to  create  a  dependence,  or  condition  of  infe- 
riority of  one  state  upon,  or  in  comparison  with  another. 
They  were  intended  to  uphold  individual  right,  to  secure 
to  the  citizens  of  every  state  equal  privileges  and  immu- 
nities throughout  the  several  states.  The  citizens  of  this 
countrj^  in  many  particulars,  and  so  for  as  they  owe  alle- 
giance to  the  federal  government,  are  regarded  as  one 
community,  as  subjects  or  citizens  of  one  and  the  same 
government ;  and  to  the  extent  of  such  allegiance  they 
are  not,  and  cannot  be  made  responsible  to  any  other 
power  or  control.  In  other  particulars,  they  are  subject, 
and  owe  allegiance  to,  the  state  in  which  they  reside. 
The  propriety  and  advantage  of  this  twofold  allegiance 
is  manifest  every  day  and  every  hour,  in  all  the  business 
operations,  and  in  all  the  social  relations  of  the  commu- 


THE     SCIENCE     OF     GOVERNMENT.  293 

nity.  The  citizens  of  Massachusetts  or  of  any  other  state, 
would  be  embarrassed  in  their  traffic,  would  be  deprived 
of  many  advantages  which  they  now  enjoy,  if  compelled 
to  confine  themselves  or  their  business  within  and  to  the 
limits  of  the  state,  in  which  they  are,  except  so  far  as  the 
other  states  should  voluntarily,  and  as  matter  of  grace, 
concede  to  their  wishes.  If  a  citizen  of  a  foreign  coun- 
try shall  attempt  to  assert  any  right  in  the  courts  of  a 
state,  or  of  the  United  States,  independent  of  treaty 
stipulation,  he  will  do  so,  in  consequence  of  a  comity 
extended  to  him ;  and  he  must  be  content  to  receive  such 
law  as  the  court  before  which  his  rights  shall  be  depend- 
ing, shall  be  able  or  willing  to  administer.  Not  so  when 
a  citizen  of  one  state  litigates  his  rights  in  the  courts  of 
another  state,  or  in  a  court  of  the  United  States.  In  such 
case  the  citizen  pursues  his  remedy  as  matter  of  right, 
and  he  is  entitled  to  the  law  of  the  state  in  which  he  liti- 
gates, and  to  the  law  of  the  United  States,  so  far  as  they 
may  respectively  be  applicable.  He  is  entitled  to  the 
law  of  the  two  sovereignties  under  which  he  lives,  so  far 
as  the  one  or  the  other  may  be  applicable ;  in  other 
words,  he  is  entitled  to  the  law  of  our  system  of  govern- 
ment. The  union  must,  therefore,  be  regarded  as  a  matter 
of  necessity ;  as  a  means,  and  the  only  secure  means  of 
self-preservation.  If  the  union  had  not  been  established, 
if  our  system  of  two  sovereignties  had  not  been  adopted, 
the  several  states  could  not,  against  themselves  and 
against  the  world,  have  maintained  their  relative  rank 
and  position.  A  despotism,  or  absolute  government,  ex- 
tending over  the  entire  territory,  unless  the  conclusions 
which  may  be  deduced  from  the  history  of  other  systems 
be  fallacious,  must  have  been  the  result.  This  subject, 
when  reference  to  the  dangers  incident  to  our  system 
shall  be  made,  may  be  resumed.  The  several  states  and 
their  citizens  have  a  relation,  also,  to  the  territories  of  the 


204  THE     SCIENCE     OF     GOVERNMENT. 

United  States,  and  to  places  Avitliin  the  several  states 
which  may  have  been  ceded  to  the  United  States,  for 
forts,  arsenals,  and  other  public  purposes  connected  with 
the  federal  government.  This  relation  is  not  the  same  as 
that  which  exists  between  the  several  states.  The  terri- 
tories of  the  United  States,  as  has  been  shown,  are  exclu- 
sively under  the  control  of  the  federal  government,  and 
under  such  laws  as  congress  may  make  or  permit  to  be 
made  therein.  This  power  is  limited  only  by  the  consti- 
tution ;  and  congress  can  exercise  its  discretion,  except  so 
far  as  the  constitution  may  restrain  its  exercise.  This 
discretion  may  be,  and  in  fact  is,  modified  by  public 
opinion.  Congress  cannot,  by  its  legislation  over  a  terri- 
tory of  the  United  States,  disregard  or  violate  the  consti- 
tution ;  and  by  implication  not  to  be  resisted,  it  cannot 
establish  any  government  except  such  as  may,  under  the 
constitution  of  the  United  States,  be  regarded  as  republi- 
can. If  a  citizen  of  one  of  the  several  states  shall 
change  his  residence  to  a  territory  of  the  United  States, 
he  does  not  take  with  him  the  law  of  the  state  from 
which  he  recedes.  He  takes,  upon  his  arrival  within  the 
territor}^,  the  law  which  he  finds  in  force;  he  must  submit 
to  the  law  of  the  territory.  This  law  of  the  territory, 
however  made,  is  the  law  of  the  United  States,  and  not 
the  law  of  any  individual  state,  or  of  any  number  of 
states  as  sovereignties.  In  respect  to  places  within  a 
state,  which  may  have  been  ceded  to  the  United  States, 
the  law  of  the  federal  jurisdiction  has  exclusive  force  and 
effect,  except  so  far  as  the  state  in  its  cession  may  have 
reserved  its  rights.  In  the  cessions  which  have  been 
made,  the  rights  reserved  generally  consist  in  a  permis- 
sion to  the  state  and  to -its  officers,  to  serve  its  process  in 
the  place  ceded,  for  the  enforcement  of  obligations  aris- 
ing from  transactions  occurring  without  the  place  ceded. 
The  object  of  such  permission  or  reservation  is,  to  prevent 


THE     SCIENCE     OF     GOVERNMENT.  295 

the  establishment  and  existence  of  places,  by  a  resort  to 
which,  individuals  might  otherwise  escape  from  their  alle- 
giance and  responsibility  to  a  state  and  to  its  laws/'= 

Another  description  of  territory  is  worthy  a  passing 
observation ;  the  District  of  Columbia.  Every  govern- 
ment, however  invisible  and  intangible  it  may  be,  must, 
for  many  purposes,  have  locality.  Those  who  framed  the 
constitution  of  the  United  States,  supposed,  that  the 
national  government,  so  far  as  it  required  locality, 
appropriately  might  and  should  be  without  the  jurisdic- 
tion or  limit  of  any  and  of  every  state  government.  It 
was  also  considered  expedient,  by  those  who  selected 
the  seat  of  government,  that  the  23lace  should  be  some- 
what isolated,  and  free  from  the  excitements  which  more 
or  less  frequently  are  produced  in  every  large  com- 
munity. External  sudden  influence  was  to  be  avoided 
and  resisted.  This  district  is  under  the  exclusive  control 
of  congress.  Its  laws  and  its  courts  are  subject  to  the 
action  of  the  federal  government.  The  people  of  the 
district  are  allowed  to  have  certain  municipal  corpora- 
tions, to  establish  their  laws,  and  generally  to  manage 
their  private  affairs,  so  far  as  they  may,  without  interfer- 
ing with  the  laws  and  purposes  of  the  federal  govern- 
ment.f 

*  The  United  States  may  have  in  Its  possession  a  tract  or  parcel  of  land  for 
a  fort,  arsenal,  or  navy  yard,  over  whicli  it  may  exercise  exclusive  power,  exclud- 
ing all  state  officers  and  state  process.  It  may  have  such  land  and  exclusive 
control,  save  only  the  existence  of  a  license  or  authority  in  a  state  to  enter  the 
same,  by  its  process  and  officers,  for  a  particular  and  prescribed  purpose.  This 
furnishes  an  analogy  which  wUl  aid  in  a  correct  ascertainment,  or  perception  of 
the  symmetry  with  which  two  sovereignties  may  exist,  at  the  same  time,  etc.,  for 
different  purposes. 

f  The  District  of  Columbia  was  taken  in  part  from  Virginia,  in  part  from 
Maryland,  under  a  stipulation  that  the  then  existing  law  of  Virginia  should 
be  applied  and  continued  as  the  standard  of  right,  over  the  jiart  taken  from 
Vir^nia,  the  law  of  Maryland  over  that  taken  from  it,  until  congress  should 
change,  and  under  a  clear  implied  undertaking,  that  private  property  and 
right  should  be  protected  and  preserved. 


296  THE     SCIENCE     OF     GOVERNMENT. 

The  people  of  the  District  of  Columbia  have  no  repre- 
sentative in  congress,  and  cannot  have ;  they  have  no 
participation  in  the  choice  of  the  officers  of  the  federal 
government,  and  cannot  have ;  they  have  no  delegate, 
and  in  this  respect  they  are  not  so  favored  as  are  the 
people  of  the  territories ;  they  have  no  absolute  or  con- 
trolling influence  or  voice  over  the  laws,  or  the  law- 
maker to  which  they  are  subject.  The  right  of  suf- 
frage, except  in  reference  to  their  municipal  officers, 
has  not  been  conceded  to  them,  and  beyond  such  limit 
the  right  cannot  be  conceded.  The  denial  of  these  po- 
litical rights  extends  only  to  the  permanent  residents 
within  the  district.  The  members  of  congress  and  the 
executive  officers  of  the  national  government  are  citizens 
of  the  several  states  from  which  they  are  temporarily  sent 
by  their  constituents,  and  they  severally  retain  their  rights 
of  citizenship.  Those  who  are  deprived  of  these  rights  by 
a  voluntary  adoption  of  the  district  as  a  place  of  resi- 
dence, are  compensated  by  the  supposed  advantages  of  a 
residence  near  the  government.  I  have  endeavored  to 
present  to  your  minds  the  difierent  relations  growing  out 
of  and  existing  under  our  system.  The  details  may,  per- 
haps, be  considered  complex;  the  principle  by  which 
these  details  are  regulated  and  made  available  to  the 
purpose  contemplated,  cannot  be  so  regarded.  If  I  have 
succeeded  in  my  effort,  even  partially,  you  will  perceive, 
that  the  two  sovereignties  of  which  I  have  spoken, 
the  state  and  the  federal,  considered  separately,  are  im- 
perfect ;  neither  is  adequate,  as  now  constituted,  by  its 
own  power  to  accomplish  all  the  purposes  for  which 
government  is  essential.  Each  has  its  own  appropriate 
trusts  and  duties  defined  in  its  charter  or  constitution ; 
each  is  supreme  and  independent  of  the  other  as  a  gene- 
ral proposition. 

A  merchant  or  other  individual  may  employ  one  per- 


THE     SCIENCE     OF     GOVERNMENT.  297 

son  to  act  as  agent  in  the  disposition  of  a  house,  he  may 
employ  another  to  manage  a  commercial  operation. 
Upon  the  same  princiiDle,  the  people  of  the  United  States 
may  employ,  and  they  have  employed,  two  agents  or  sove- 
reignties, each  intrusted  with  certain  duties,  by  the  sepa- 
rate and  harmonious  action  of  which  all  the  trusts  of 
government  are  performed,  and  the  union,  known  as  the 
United  States,  so  long  as  its  citizens  are  faithful  to  them- 
selves, wall  have  no  political  compeer. 


38 


LECTURE    XI. 


IIEVOLUTION.  —  AMENDMENT.  —  INSTRUCTION.  —  NULLIFICATION.  —  SECESSION. 

STATE   EIGHTS. 


In  political  discussions,  in  discussions  which  appertain 
to  the  conduct  and  acts  of  government,  it  is  common  to 
refer  to  a  supposed  right  of  revolution,  meaning  thereby 
a  right  to  resist ;  and,  if  essential  to  the  views  and  pur- 
poses of  those  who  set  up  such  right,  to  subvert,  to  put 
down  the  constituted  authorities.  In  relation  to  every 
government,  the  presumption,  in  the  first  instance,  is  in 
favor  of  its  legality  ;  the  presumption  is,  that  it  origi- 
nated in  the  consent,  express  or  implied,  of  those  subject 
to  its  jurisdiction,  and  that  its  conduct  is  in  conformity ' 
with  the  law  of  its  creation.  The  legal  presumption,  in 
the  absence  of  proof  to  the  contrary,  in  relation  to  the 
deportment  of  public  and  of  private  individuals,  is,  that 
they  perform  their  duty.  Fraud,  wrong,  and  oppression 
are  not  to  be  assumed ;  those  who  aver  their  existence 
are  bound  to  show  it.  It  is  reasonable  to  presume  the 
existence  of  integrity,  unless  some  fact  can  be  adduced, 
having  a  reasonable  tendency  to  show,  in  a  particular 
transaction  or  matter,  that  it  has  no  existence.  The 
American  colonies  admitted  and  acted  upon  the  cor- 
rectness of  this  suggestion.     The  declaration  of  indepen- 


300  thj:   science   of   government. 

dence,  which  was  made  Ijy  them,  wherein  they  declared 
themselves  absolved  from  the  British  crown,  enumerated 
with  precision  and  distinctness  the  wrongs  and  injuries 
which  had  been  imposed  upon  them.  It  was  assumed, 
that  a  decent  respect  to  the  opinions  of  mankind  required 
an  exhibition  of  the  causes  of  discontent. 

Whenever  a  government  is  established  by  the  consent 
of  the  people,  it  is  in  the  nature  of  a  contract  or  obliga- 
tion, voluntarily  assumed  between  the  government  and 
those  by  whom  it  was  established.  In  such  case,  good 
faith  requires  that  the  duties  and  trusts  of  the  govern- 
ment, on  the  one  side,  should  be  performed,  and  an  obe- 
dience on  the  other,  to  the  obligation  assumed,  should  be 
conceded.  If  this  be  not  so,  as  a  primary  proposition, 
civil  society  cannot  be  progressive ;  its  objects  cannot  be 
attained ;  but  a  general  state  of  anarchy  and  confusion 
must  exist.  This  theory  assumes  that  government  Avill 
perform  its  duty,  will  discharge  its  trusts.  A  slight  sur- 
vey of  history  will  exhibit  evidence  sufficient  to  authorize 
the  declaration,  that  governments  have  not  always  per- 
formed their  obligations ;  it  will  also  show,  in  many  in- 
stances, that  government  has  been  the  instrument  of  gross 
oppression  and  injustice  ;  it  has  enslaved  its  own  people, 
and  sought  to  enslave  others.  The  people  have  often 
submitted  patiently  to  wrong  and  oppression,  forgetful  of 
their  condition,  heeding  only  the  external  power  and 
dignity  Avhich  appertained,  as  they  supposed,  to  their 
country  and  its  leaders.  In  such  instances  of  oppression, 
you  will  ordinarih'  perceive,  in  the  character  of  the  peo- 
ple, a  want  of  intelligence,  of  education,  of  moral  power. 
No  law,  human  or  divine,  can  require  a  community  to  sub- 
mit to  continued  wrong  and  degradation ;  to  see,  day  after 
day,  their  earnings  seized  by  government,  and  applied  to 
sustain  its  ambition,  to  enlarge  its  power,  regardless  of  the 
rights  and  immunities  of  the  people.     It  must,  therefore. 


THE     SCIENCE     OF    GOVERNMENT.  301 

be  conceded,  that  in  some  cases  and  under  some  circum- 
stances, the  right  or  power  of  revolution  may  be  exercised ; 
it  may  become  a  solemn  duty  to  exercise  it.  The  sup- 
posed right  has  frequently  been  exercised,  in  some  in- 
stances by  the  overthrow  and  dethronement  of  a  parti- 
cular individual  or  class  of  individuals,  substitutinsj; 
another  individual  or  class  of  individuals,  without  mak- 
ing any  change  in  the  form  or  system  of  government.  In 
other  cases,  those  in  power  have  been  displaced,  and  the 
system  has  been  abolished  and  a  different  one  substituted. 
A  dif&culty  and  embarrassment  does  and  always  must  at- 
tend this  right,  which  arises  from  the  fact,  that  there  is 
not  a  fixed  standard  or  rule,  by  which  the  propriety  of 
its  exercise  can  be  determined.  It  cannot  with  propriety 
be  said,  that  a  majority  of  a  people  may,  as  mere  matter 
of  caprice,  without  cause,  overturn  and  subvert  the  gov- 
ernment under  which  they  live.  Such  theory  must  be 
regarded  too  broad,  too  extensive;  because,  if  correct,  if 
sustained,  it  destroys  all  civil  society,  all  organization. 
Such  theory  assumes  that  government  is  not  essential ; 
that  it  may  be  put  down  at  any  moment,  and  the  rights 
upheld  thereby  destroyed.  The  power  of  revolution  is 
an  extreme  right,  to  be  exercised  only  when  the  govern- 
ment, from  corruption,  imbecility,  or  other  cause,  shall 
fail  to  afford  protection  and  security  to  private  right,  shall 
fail  to  accomplish  the  purjDose  of  government,  shall  dis- 
regard its  trusts,  and  after  all  reasonable  efforts  to  obtain 
redress  and  correction  shall  be  unavailing.  Every  slight 
abandonment  or  neglect  of  duty,  cannot  authorize  a  state 
of  anarchy  and  confusion,  or  the  overthrow  and  overturn 
of  a  community,  and  the  destruction  of  its  institutions. 
In  such  case,  the  wrong  to  be  redressed,  the  injury  to  be 
compensated,  will  not  authorize  a  remedy  so  dangerous, 
so  severe.  The  evidence  and  experience  derived  from 
history  is,  that  revolutions  often  end  in  the  substitution 


302  THE    SCIENCE     OF     GOVERNMENT. 

aiul  creation  of  a  power  more  to  Ije  dreaded  than  the  one 
displaced.  It  is  also  equally  apparent  from  the  history  of 
the  2)ast,  that  the  rights  of  the  people  may,  under  some 
circumstances,  be  asserted  successfully  against  the  gov- 
ernment by  the  moral  power  of  the  people.  The  English 
government,  next  to  our  own,  is  to  a  much  greater  extent 
iniiucnced  by  and  subject  to  the  power  of  the  people 
than  any  other,  and  their  rights,  to  the  extent  which  they 
have  been  conferred,  are  so  secure  as  are  our  rights. 
The  English  government  has  been  modified  and  changed, 
from  time  to  time,  in  many  of  its  features,  and  its  admin- 
istration has  been  more  or  less  in  conformity  with  pub- 
lic sentiment,  and  this  must  continue  in  its  future  pro- 
gress. These  changes  have  been  produced  by  the  moral 
power  of  the  people.  Declarations  or  charters  of  right 
have  frequently  been  made  and  conceded,  by  which  the 
power  and  influence  of  the  peoj)le  have  been  enlarged, 
and  their  rights  rendered  more  secure  from  the  power  of 
the  government.  Governments  of  an  absolute  and  des- 
potic character  have,  in  some  instances,  yielded  to  the 
moral  power  of  the  people.  Instances  of  concession  by 
government  to  its  subjects  are  numerous.  The  lesson 
which  they  teach  is  of  the  utmost  value.  These  conces- 
sions have  been  the  result,  the  effect  of  an  adequate 
cause.  Whenever  and  wherever  they  have  been  made, 
they  have  resulted  from,  and  have  been  produced  by, 
an  increased  elevation  of  the  people ;  by  an  improve- 
ment in  their  character ;  in  a  single  word,  by  an  in- 
crease of  education.  This  education  has  not  been  ac- 
quired altogether  from  books  or  from  public  journals, 
although  these  have  done  much.  It  has  been,  to  a  far 
greater  extent,  acquired  from  a  practical  knowledge  of 
men,  of  things,  of  moral  and  political  right,  deduced  hy 
a  people  from  their  traffic,  commerce,  and  association 
with  the  people  of  other  countries,  and  of  other  govern- 


THE     SCIENCE     OF     GOVERNMENT.  303 

meiits.  In  the  great  work  of  extending  practical  knowl- 
edge, our  institutions  and  our  system,  through  its  people, 
have  done  much ;  and  so  long  as  they  exercise  the  influ- 
ence of  their  habits  and  modes  of  thought,  passively  and 
with  an  avoidance  of  all  improper  interference  with  the 
people  or  institutions  of  other  countries,  it  will  produce 
a  moral  power  more  potent  than  all  our  arms  can  exert. 
If  these  suggestions  are  sound,  you  will  perceive  that  a 
moral,  well  educated  people  cannot  be  enslaved,  or  com- 
pelled to  hold  their  reasonable  rights  at  the  will  of  any 
government.  You  will  also  perceive,  that  moral  revolu- 
tion is  easier  and  more  successful  than  a  revolution  by 
force  can  be  ;  that  moral  revolution  should  be  sought  and 
adopted  as  the  means  of  the  correction  of  wrong  and  the 
establishment  of  right,  until,  by  repeated  effort,  it  shall 
be  found  inadequate  and  impracticable.  The  propriety 
of  forcible  revolution  is  more  or  less  dependent  upon  the 
construction  and  character  of  the  o;overnment  as-ainst 
which  it  is  proposed  to  exercise  the  power.  The  inability 
of  a  system  to  accomplish  its  purpose,  by  the  protection 
of  private  right,  may  arise  from  its  construction,  from 
the  want  of  departments  and  institutions.  A  govern- 
ment whose  discretion  is  unlimited,  will  not  ordinarily  re- 
gard the  interest  and  welfare  of  the  people  as  paramount 
to  all  other  considerations.  It  will  regard  itself  and  its 
purposes,  as  the  essential  matters  to  be  established  and 
protected  by  the  use  and  instrumentality  of  the  people, 
A  government  whose  duties  are  performed  by  the  aid  of 
independent,  permanent  departments  or  institutions,  is,  to 
the  extent  of  the  power  intrusted  to  such  departments, 
constantly  controlled  by  the  checks  which  they  impose ; 
and,  so  long  as  those  who  administer  these  departments 
are  faithful,  they  constitute  a  barrier  between  the  govern- 
ment and  the  people.  The  origin  of  the  government 
sought  to  be  revolutionized,  is  another  fact  or  circum- 


304  THE     SCIENCE     OF     GOVERNMENT. 

stance  to  be  regarded.  A  people  may  well  and  fitly  re- 
sist a  government  established  by  usurpation,  in  opposition 
to  and  in  defiance  of  their  will,  against  their  consent,  ex- 
press or  implied,  when  they  may  not  resist  one  to  which 
they  may  have  given  assent.  It  should  also  be  remem- 
bered by  those  who  counsel  revolution,  that  they  propose 
to  take  the  law  into  their  own  hands,  and  to  adjudicate 
between  the  government  and  themselves  upon  their  sup- 
posed rights,  without  the  intervention  of  the  other  con- 
tracting party  in  interest.  I  need  not  say,  that  a  judge 
of  and  in  his  own  cause,  may  be  unsafe. 

I  have  referred  to  the  subject  of  revolution,  and  to  the 
several  principles  applicable  thereto,  for  the  purpose  of  ^ 
saying,  it  is  not  applicable  to  our  system  of  government, 
in  the  same  sense  and  to  the  same  extent,  as  it  is  and 
may  be,  to  systems  of  a  different  construction.  The 
science  of  government,  as  exhibited  in  the  institutions  of 
the  United  States,  does  not  contemplate  or  regard  the 
power  of  revolution  as  one  of  its  elements.  Our  system 
was  created  and  established  by  the  people.  It  consists  of 
different  sovereignties,  of  departments,  and  of  institu- 
tions. These  sovereignties,  these  institutions  are  managed, 
their  trusts  are  performed,  by  individuals  selected  by  the 
people  for  a  certain  prescribed  term  of  time.  The 
administrative  power,  by  which  term  I  mean  the  legisla- 
tive and  executive  departments  of  the  several  states, 
passes  at  short  intervals  of  time,  from  one  person  or  class 
of  persons,  to  another  individual  or  class  of  individuals. 
This  change,  in  many  of  the  state  governments,  is  annual, 
and  in  all  it  is  frequent ;  so  that  the  people  have  constant 
opportunity,  by  a  change  of  men  or  change  of  officers, 
to  avoid  corruption  or  incompetency  or  carelessness,  so 
far  as  the  same  may  result  from  individuals,  who  for  the 
time  being  may  be  charged  with  the  trusts  of  govern- 
ment.    From  this  fact,  you  will  perceive  that  revolution 


THE     SCIENCE     OF     GOVERNMENT.  305 

is  not  essential  to  the  people,  or  to  a  maintenance  of  their 
rights  and  liberties,  so  far  as  they  may  be  disregarded  or 
endangered  by  the  individuals  in  power  or  place.  These 
individuals,  in  most  cases,  are  liable  to  be  removed  by 
impeachment,  or  other  mode  of  removal,  if  faithless  or 
incompetent ;  and  so  long  as  they  remain  in  office  are 
subject  to  the  charters  and  constitutions  under  which 
they  act,  as  a  limit  within  and  by  which  they  are  bound. 
This  fact  is  true  in  relation  to  the  federal  government. 
The  legislative  department,  in  one  branch,  which  is  the 
popular,  and  in  some  respects  the  most  important,  may 
be  changed  every  two  years ;  the  other  branch,  the  senate, 
is  partially  changed  every  two  years,  and  every  six  years 
may  be  filled  by  persons,  no  one  of  whom  shall  have  occu- 
pied his  place,  under  one  and  the  same  election,  more  than 
six  years.  The  chief  executive  officer,  as  you  are  aware,  is 
changed,  or  may  be,  every  four  years.  The  result  of  this 
arrangement  is,  that  no  person  can  hold  office,  under  the 
federal  government,  except  judicial  officers,  for  more  than 
six  years,  against  the  will  of  the  people.  The  persons  in 
office,  upon  cause  shown,  may  be  displaced  in  less  time; 
and  all  judicial  officers  are  subject  to  impeachment  and 
removal  for  corruption ;  so  that  the  people,  without  forci- 
ble revolution,  are  secure  in  their  rights,  if  they  are  true 
to  themselves.  If  the  system  does  not  accomplish  the 
purpose  sought  to  be  attained  by  its  establishment,  it 
may  be  modified  and  changed  by  amendment.  The  sev- 
eral state  constitutions  contain  provisions  for  their  amend- 
ment. In  the  constitution  of  Massachusetts,  as  it  now  is, 
it  is  declared,  that  any  specific  and  particular  amendment 
or  amendments,  may  be  proposed  in  the  general  court, 
and  if  agreed  to  by  a  majority  of  the  senate  and  two 
thirds  of  the  house  of  representatives,  they  are  entered 
on  the  journals  of  the  two  houses,  and  referred  to  the 
general  court  then  next  to  be  chosen,  and  they  are  pub- 

39 


306  THE    SCIENCE    OF    GOVERNMENT. 

lishecl  for  the  information  of  the  community.  If  the 
proposed  amendments  shall  again  be  approved  by  a  ma- 
jority of  the  senate  and  by  two  thirds  of  the  house  of 
representatives,  ilmy  are  proposed  to  the  jieojDle  for  their 
consideration  ;  and  if  approved  by  a  majority  of  the  legal 
voters,  they  thereupon  become  parts  of  the  constitution. 
This  is  a  peaceful,  quiet,  and  effectual  legal  revolution  or 
change  of  the  system  of  government,  to  the  extent  of 
the  amendments  which  may  be  adopted.===  The  provision 
to  which  reference  has  been  made,  exhibits  certain  gene- 
ral principles,  which  are  in  harmony  with  every  part  of 
the  system.  These  principles  recognize  the  power  of  the 
people  to  protect  themselves ;  they  induce  to  the  conclu- 
sion, that  the  system  of  government  is  of  their  creation, 
is  for  their  benefit,  and  may  be  made  to  correspond  with 
the  progress  and  exigencies  of  societ}- ;  they  also  conduce 
to  another  result,  which  is,  that  changes  in  the  funda- 
mental law  should  not  be  rashly  or  hastily  made,  that  no 
sudden  passion  or  caprice  should  induce  change.  It  is  also 
apparent,  that  the  people  exercise  the  power  of  amendment 
to  some  extent,  indirectly,  through  the  intervention  of  their 
representatives.f  In  New  Hampshire,  the  opinion  of  the 
people  as  to  the  propriety  of  amending  its  constitution, 
is  taken  every  seven  years ;  if  a  majority  of  those  who 
vote  are  in  favor  of  an  amendment,  a  convention  is  or- 
ganized to  suggest  and  report  the  amendments  which  in 
its  opinion  should  be  made  ;  and  if  they  shall  subsequently 
be  adopted  by  a  two  thirds  vote  by  the  people,  they 
become  effectual  as  a  part  of  the  constitution.     The  con- 


*  Any  and  every  other  mode  of  amendment  is  illegal,  is  a  clear  violation  of 
the  constitution,  and  a  subversion  of  the  fundamental  law. 

t  This  provision  was  introduced  from  an  impression,  that  the  representatives 
of  the  people  would  be  in  possession  of  information,  derived  from  every  part  of 
the  commonwealth,  in  relation  to  the  working  of  the  system,  and  would  be  compe- 
tent to  discuss  in  a  dispassionate  manner  the  fitness  of  any  proposed  amendment. 


THE     SCIENCE    OF     GOVERNMENT.  307 

stitution  of  the  United  States  may  be  amended.  Con- 
gress, whenever  two  thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  constitution, 
or,  on  the  application  of  two  thirds  of  the  several  states, 
shall  call  a  convention  for  proposing  amendments,  which, 
in  either  case,  shall  be  valid  to  all  intents  and  purposes, 
as  part  of  the  constitution,  when  ratified  by  the  legisla- 
tures of  three  fourths  of  the  several  states,  or  by  conven- 
tions in  three  fourths  thereofj  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  congress,  pro- 
vided, (among  other  things,)  that  no  state  without  its  con- 
sent, shall  be  deprived  of  its  equal  suffrage  in  the  senate.* 
The  power  of  amendment  is  carefully  guarded,  and 


*  The  constitution  of  the  United  States  cannot,  rightfully,  be  amended  in 
any  other  mode.  If  the  provision  recited  is  directory,  or  if  the  people,  acting 
upon  their  supposed  ever  present  inaUenable  right  over  the  government,  may, 
by  a  majority  of  the  voters  throughout  the  United  States,  or  by  majorities  in  a 
major  part  of  the  several  states,  disregard  any  part  of  the  provision,  they  may 
disregard  the  whole,  and  by  their  action  may  disfranchise  some  one  or  more  of 
the  smaller  states,  by  taking  away  their  equal  right  of  suffrage  in  the  senate  of 
the  United  States.  The  writer  is  not  aware  that  such  theory  has  ever  had,  or 
can  have  any  plausible  ground  for  its  support.  Mr.  Justice  Story,  in  his  com- 
mentaries upon  the  constitution,  referring  to  the  clause  providing  for  its  amend- 
ment, says,  "  Upon  this  subject  little  need  be  said  to  persuade  us  at  once  of  its 
utility  and  importance.  It  is  obvious  that  no  human  government  can  ever  be 
perfect,  and  that  it  is  impossible  to  foresee  or  guard  against  all  the  exigencies, 
which  may  in  different  ages  require  different  adaptations  and  modifications  of 
powers  to  suit  the  various  necessities  of  the  people.  A  government  forever 
changing  and  changeable,  is  indeed  in  a  state  bordering  upon  anarchy  and  con- 
fusion. A  government,  Avhich  in  its  own  organization  provides  no  means  of 
change,  but  assumes  to  be  fixed  and  unalterable,  must  after  a  while  become 
wholly  unsuited  to  the  circumstances  of  the  nation,  and  it  will  either  degenerate 
into  a  despotism,  or  by  the  pressure  of  its  inequalities  bring  on  a  revolution.  It 
is  Avise,  therefore,  in  every  government,  and  especially  in  a  republic,  to  provide 
means  for  altering  and  improving  the  fabric  of  government,  as  time  and  expe- 
rience, or  the  new  phases  of  human  affairs  may  render  proper,  in  order  to  pro- 
mote the  happiness  and  safety  of  the  people.  The  great  principle  to  be  sought 
is,  to  make  the  changes  practicable,  but  not  too  easy ;  to  secure  due  deliberation 
and  caution ;  and  to  follow  experience,  rather  than  to  open  a  way  for  expen- 
ments,  suggested  by  mere  speculation  or  theory."  These  observations  are 
replete  with  sentiments  of  patriotism ;  they  exhibit  the  profound  knowledge  and 


308  THE     SCIENCE     OF     GOVERNMENT. 

cannot  well  be  used  to  the  injury  of  the  community,  un- 
less it  shall  become  careless  and  heedless  of  its  rijrhts  and 
its  duties.  Notwithstanding  the  power  is  conferred  in 
general  terms,  and,  if  exercised  in  the  mode  prescribed, 
seems  to  be  boundless,  it  should  be  regarded  as  a  limited 
and  qualified  right,  not  to  be  exercised  to  the  destruction 
of  private  right,  or  in  derogation  of  the  fundamental 
princi^jles  which  are  proclaimed  in  the  bills  or  declara- 
tions of  right.  The  power  of  amendment  was  designed 
to  sustain  and  uphold  our  political  and  social  institutions, 
and  not  for  the  purpose  of  destruction,  or  with  intent  to 
procure  their  entire  subversion.  The  power,  so  far  as  the 
several  states  are  concerned,  is  by  implication  so  far  re- 
strained by  the  constitution  of  the  United  States,  that  no 
state  can  rightfully  so  amend  its  constitution  as  to  estab- 
lish thereby  any  form  of  government,  which  is  not  in 
form  republican.  The  federal  constitution,  when  sub- 
mitted to  the  people  for  consideration,  was  opposed.  It 
was  adopted  in  three  states  unanimously :  Delaware,  New 
Jersey,  and  Georgia.  The  instrument  became  operative 
by  the  vote  of  New  Hampshire,  the  ninth  state  which  ac- 
cepted it,  by  a  vote  of  fifty-seven  in  favor,  and  forty-six 
against  it.  Many  of  the  states,  at  the  time  of  their  rati- 
fication of  the  instrument,  suggested  and  recommended 
amendments,  some  of  which  were  subsequently  adopted, 
in  the  mode  prescribed  for  the  adoption  of  amendments, 
and  became  part  of  the  constitution.  The  proposition  to 
amend  was  made  in  the  first  congress  by  Madison,  who 
urged  the  necessity  of  some  speedy  action  to  meet  the 
expectation,  and  to  quiet  the  impatience  of  the  numerous 

sagacity  of  their  eminent  author.  Limitations  of  the  mode  in  which  amend- 
ments may  be  made,  arc  no  less  or  more  obligatory  upon  the  people,  than  are 
limitations  upon  the  subject-matter  of  amendments.  Provisions  for  amendment, 
contained  in  a  state  constitution,  so  ■nell  as  those  in  the  constitution  of  the 
United  States,  should   be  adhered  to,  and  should  be  exercised  with  fidelity. 


THE     SCIENCE     OF     GOVERNMENT.  309 

friends  of  amendments.  Some  of  the  members  opposed 
all  action  upon  the  subject,  until  the  instrument  had  been 
in  operation  for  a  period  sufficient  to  determine  its  capa- 
cit}^  and  fitness.  This  proposed  delay  was  successfully 
resisted.  The  friends  of  amendment  did  not  propose  to 
reconsider  or  change  the  general  frame  and  structure  of 
the  system ;  but  from  motives  of  policy,  and  for  the  pur- 
pose of  improvement,  suggested  several  provisions,  de- 
signed to  insure  the  protection  of  personal  rights.  One 
proposition  of  amendment,  of  an  important  bearing  and 
character,  was  made,  which  was  rejected.  It  was  pro- 
posed to  amend,  so  as  to  confer  upon  the  people  "  the 
right  to  instruct  their  representatives."  Several  members 
advocated  this  amendment,  with  an  understanding  on  their 
part  that  it  would  not  imply,  on  the  part  of  the  rej)re- 
sentative,  any  obligation  to  obey.  Mr.  Gerry,  a  distin- 
guished and  patriotic  citizen,  advocated  it  under  such  an 
impression,  in  relation  to  its  force  and  effect,  if  adopted. 
Those  who  favored  it,  generally  considered  it  absolutely 
necessary,  and  strictly  compatible  with  the  S23irit  and 
nature  of  the  government.  It  was  urged,  that  all  power 
was  vested  in  the  people  ;  that  the  system  contemplated 
a  government  of  the  people,  a  democracy ;  that  the  peo- 
ple, for  convenience  only,  had  agreed  that  their  represen- 
tatives should  exercise  a  part  of  their  authority ;  that  a 
denial  of  the  power  of  the  people  to  instruct  their  agents, 
must  be  regarded  as  a  denial  of  one  of  their  inalienable 
rights.  These  suggestions  were  resisted,  and  their  pur- 
pose defeated.  It  was  urged  by  those  who  entertained 
different  views,  that  a  right  to  instruct  a  representative, 
if  it  implied  no  obligation  to  obey,  was  idle  and  useless ; 
that  the  people  without  such  provision,  were  at  liberty  to 
express  their  opinion  of  the  measures,  of  the  conduct  of 
government,  and  that  such  opinion  must  of  necessity 
command  the  consideration  and  respectful  attention  of 


310  THE    SCIENCE    OF    GOVERNMENT. 

the  representative.  If  the  proposed  amendment  should 
be  regarded  as  imposmg  an  absolute  obligation  of  obedi- 
ence, it  would  be  pernicious,  and  ought  not  to  be  adopted. 
In  ojiposition  to  the  proposed  amendment,  Mr.  Madison 
said,  Suppose  a  representative  is  instructed  to  violate  the 
constitution  ;  is  he  at  liberty  to  obey  such  instructions  ? 
Suppose  he  is  instructed  to  support  certain  measures, 
which,  from  circumstances  known  to  him,  but  not  to  his 
constituents,  he  is  convinced  will  endanger  the  public 
good,  is  he  obliged  to  surrender  to  their  judgment  his 
own  ?  Suppose  he  refuses,  will  his  vote  be  the  less  valid,  or 
his  constituents  less  bound  to  3'ield  that  obedience  which 
is  due  to  the  laws  of  the  union  ?  If  his  vote  must  inevi- 
tably have  the  same  elBfect,  what  sort  of  a  constitutional 
right  is  this,  to  instruct  a  representative  who  has  a  right 
to  disregard  the  order  if  he  pleases  ?  Those  of  a  different 
opinion  ask,  if  the  sovereignty  is  not  with  the  people  at 
large.  But  is  it  to  be  inferred,  that  the  people,  in  de- 
tached bodies,  can  contravene  a  law  established  by  the 
whole  people  ?  My  idea,  (says  Mr.  Madison,)  of  the  sove- 
reignty of  the  people,  is  this,  the  people  can  change  the 
constitution  if  they  please  ;  but  while  it  exists,  they  must 
conform  to  its  provisions.  I  do  not  believe  that  the  in- 
habitants of  any  district  can  speak  the  voice  of  the  peo- 
ple ;  so  far  from  it,  their  ideas  may  contravene  the  sense 
of  the  whole  people ;  and  hence  the  doctrine  of  the  bind- 
ing force  of  instructions  is  of  a  doubtful,  if  not  of  a  dan- 
gerous character.  In  thus  sa^dng  and  in  thus  voting,  Mr. 
Madison  acted  upon  his  own  responsibility  and  judgment, 
in  opposition  to  the  supposed  sentiments  of  the  state  which 
he  in  part  represented,  and  in  opposition  to  the  sentiments 
of  the  poHtical  party  to  which  he  belonged.  The  supposed 
right  of  instruction  had  its  origin  with  the  commencement 
of  our  system,  and  has  been  the  subject  of  continued  discus- 
sion.  That  it  does  not  exist  as  a  matter  of  right,  may  be  in- 


THE     SCIENCE     OF     GOVERNMENT.  311 

ferred  from  the  fact,  that  it  is  not  found  in  the  constitution, 
and  from  the  failure  of  the  effort  made  to  have  it  inserted 
as  an  amendment.  The  principle  which  has  been  relied 
upon  in  its  support,  is  sound,  and  cannot  successfully  be 
denied  or  controverted.  Whether  the  principle  by  which 
the  right  of  instruction  is  sought  to  be  maintained  can 
be  applied,  is  an  entirely  different  and  distinct  question. 
It  is  true,  that  the  principal  may  instruct  his  agent ;  that 
an  agent  is  bound  to  follow  the  instructions  of  his  prin- 
cipal. No  position  more  accurate  or  true  can  be  stated. 
It  is  equally  certain,  that  a  principal  may  delegate  certain 
authority  to  an  agent,  to  accomplish  certain  purposes, 
and  may  clothe  such  agent  with  irrevocable  power,  or 
with  power  revocable,  under  certain  limitations.  In  other 
words,  a  principal  may  if  he  chooses,  confer  upon  an 
agent  powers  which,  by  his  own  consent  and  agreement, 
he  Avill  not  and  cannot  withdraw.  The  right  of  instruc- 
tion is  to  be  determined  by  an  application  of  these  prin- 
ciples, as  they  may  or  may  not  apply  to  our  system  of 
government.  It  is  and  frequently  has  been  said,  that 
the  representatives  of  the  people  and  the  officers  of  gov- 
ernment, are  the  servants  and  agents  of  the  people,  and 
as  such  are  bound  to  regard  their  will,  at  all  times  and 
under  all  circumstances.  In  other  words,  that  the  people 
are  above  all  law.  This  is  not  true,  however  unpleasant 
the  declaration  may  be. 

The  representatives  of  the  people  and  the  officers  of 
government,  are  the  servants  and  agents  of  the  people  to 
perform  certain  political  trusts,  in  conformity  and  in 
accordance  with  certain  charters  or  constitutions  which 
the  people  have  voluntarily  established  as  their  guide, 
and  as  the  source  from  which  their  powers  are  derived, 
and  are  to  be  ascertained.  It  is  the  prerogative  of  Ame- 
rican citizens  to  say,  that  they  live  under  a  system  of 
law ;  that  their  liberty  is  regulated  by  law ;  but  they 


312  THE    SCIENCE    OF    GOVERNMENT. 

cannot  add,  that  it  is  their  prerogative  to  disregard  the 
law,  simply  because  they  are  its  founders  and  authors. 
Apply  the  principle  which  I  have  endeavored  to  illustrate 
to  the  case  of  a  magistrate  or  judge :  the  magistrate  is  a 
servant  and  representative  of  the  people,  but  he  is  not 
and  cannot  be  bound  by  their  instructions,  except  so  far 
as  they  may  be  contained  in  the  constitution  and  laws, 
for  the  construction  of  which  he  is  the  agent.  Equally 
true  it  is  of  the  representative,  and  of  every  officer 
known  to  the  law.  They  and  each  of  them  are  bound, 
in  the  discharge  of  their  respective  trusts,  by  constitutions 
and  by  the  law  of  the  land.  The  people  may  express 
their  ojoinions,  may  discuss  the  conduct  of  their  servants 
and  agents,  and,  at  intervals  of  time,  displace  them ; 
and  they  may  enlarge  or  diminish  their  power,  by  amend- 
ing the  system,  in  the  mode  prescribed,  under  which  they 
act ;  in  no  other  way  can  they  instruct  or  control  them. 
They  have  no  occasion  to  instruct  or  control  them  in  any 
other  way.  The  powers  of  amendment,  of  election  to 
office,  which  the  people  undoubtedly  possess  and  enjoy, 
are  ample,  as  means  of  correcting  all  evils  which  can  re- 
sult from  any  deficiency  which  may  be  discovered  in  the 
construction  of  government,  or  which  may  occur  from  the 
corruption  or  incompetency  of  individuals  selected  to  dis- 
charge its  trusts.  The  power  or  supposed  right  of 
instruction  is  more  plausible  and  is  less  dangerous  in  its 
tendency,  than  another  supposed  right,  somewhat  similar 
in  its  character,  which  has  frequently  been  asserted 
and  encouraged.  I  refer  to  the  assumed  power  of  nulli- 
fication, which  some  politicians  have  advocated.  The 
doctrine  which,  under  this  term,  has  been  set  forth,  had 
its  origin  in  a  resolution  of  the  Assembly  of  Virginia. 
In  the  resolution  referred  to,  it  is  declared,  "  that  the 
powers  of  the  federal  government,  resulting  from  the 
compact  to  which  the  states  are  parties,  are  limited  by 


THE     SCIENCE     OF     GOVERNMENT.  313 

the  plain  sense  and  intention  of  the  instrument  consti- 
tuting that  compact,  and  they  are  no  farther  vahd  than 
they  are  authorized  by  the  grants  enumerated  in  that 
compact ;  and  that  in  case  of  a  deliberate,  palpable,  and 
dangerous  exercise  of  other  powers  not  granted  by  the 
said  compact,  the  states  who  are  parties  thereto  have  the 
right,  and  are  in  duty  bound,  to  interpose  for  arresting 
the  progress  of  the  evil,  and  for  maintaining  within  their 
respective  limits  the  authorities,  rights,  and  liberties  ap- 
pertaining to  them."  This  declaration  is  an  able,  ingen- 
ious, and  fascinating  definition  of  the  right  or  power  which 
it  upholds.  It  is  so  mingled  with  truth,  that  its  fallacy  may 
easily  escape  observation.  It  contains  three  distinct  pro- 
positions ;  two  of  which  are  entirely  without  any  consti- 
tutional or  reasonable  intendment  in  their  favor,  and  can- 
not, so  long  as  the  union  and  its  system  shall  remain,  be 
sustained ;  the  third  is  sound,  and  has  always  been  con- 
ceded. The  declaration  assumes,  that  the  constitution  of 
the  United  States  is  a  compact  between  the  several  states, 
acting  as  independent  sovereign  contracting  parties ;  that 
the  federal  government,  independent  of  such  compact, 
has  no  power  or  existence.  The  second  proposition  is, 
that  the  powers  of  the  federal  government  are  limited ; 
that  it  is  intrusted  with  certain  specified  trusts,  beyond 
which  it  cannot  rightfully  act ;  that  these  trusts  are  enu- 
nierated  and  defined  in  a  paper  which  the  declaration 
designates  a  compact.  The  third  proposition  or  princij)le 
is  a  logical  and  necessary  result  of  the  first,  and  it  is,  that 
the  several  states  may  for  themselves  determine,  wdiether 
the  federal  government  has  or  has  not  in  any  case  tran- 
scended its  limited  powers ;  and  if  it  has  so  transcended 
its  power,  in  the  opinion  of  any  state,  such  state  may  dis- 
regard, and  nullify  the  action  of  the  federal  government. 
In  other  words,  a  state  sovereignty  may  submit  to  the 
power  of  the  federal  government  at  its  election.     This 

40 


314  THE    SCIENCE    OF    GOVERNMENT. 

theory  was  condemnerl  and  rebuked  by  President  Jack- 
son in  terms  and  in  tone  not  to  be  forgotten.  The  pro- 
clamation -which  he  made  in  relation  to  the  principles 
deduced  Irom  the  Virginia  resolution,  -will  be  remem- 
bered, and  its  influence  will  be  felt  here  or  elsewhere, 
when  all  his  battles,  all  his  victories  shall  have  faded  in 
the  memory.  The  fallacy  of  the  declaration  to  which 
reference  has  been  made,  consists  in  an  assumption,  that 
the  constitution  of  the  United  States  is  a  compact,  treaty, 
or  agreement  between  the  several  states  as  sovereignties ; 
and  that  it  is  not  an  independent  system  of  government, 
supreme  within  its  prescribed  limits.  When  sovereign 
powers  contract  m  ith  each  other,  they  must,  in  the  nar 
ture  of  things,  determine  on  each  and  either  side,  whe- 
ther the  other  may  have  performed  its  obligation,  and  if 
not,  to  redress  itself  No  tribunal  or  congress  of  nations 
has  been  established  by  which  disputes  and  disagreements 
between  sovereign  states  can  be  adjudicated  ;  and,  in  the 
absence  of  such  power  or  institution,  they  must  decide 
their  own  rights  for  themselves.  This  principle  has  no 
application,  and  cannot  be  applied  to  a  system  of  gov- 
ernment which  has  provided  departments  and  machinery, 
by  which  its  rights  and  the  rights  of  its  citizens  are  to  be 
determined.  The  constitution  of  the  United  States  is  not 
a  compact  between  states ;  it  is  a  system  of  government, 
established  by  the  people  for  their  benefit,  with  the  con- 
sent and  approbation  of  the  several  states,  w^hich  consent 
cannot  be  withdrawn  or  evaded  until  the  system  itself, 
by  force  or  other  means,  shall  cease  to  exist.  This  truth 
is  prominently  and  distinctly  stated  and  recognized  in 
the  constitution  of  the  United  States.  It  has  been  recog- 
nized by  the  supreme  court  of  the  United  States  in  many 
and  in  all  of  its  judgments,  w^henever  the  subject  has  been 
matter  of  discussion.  These  judgments,  in  many  instances, 
have  been  pronounced  with  great  force  and  ability  by 


THE    SCIENCE     OF     GOVERNMENT.  315 

the  late  most  eminent  chief  justice  of  the  United  States, 
the  ablest  jurist  which  Virginia  has  ever  had,  of  whom, 
and  of  whose  memory  she,  with  her  sister  states,  may 
justly  be  proud.  The  second  element  contained  in  the 
declaration  to  which  reference  has  been  made,  is  true. 
The  federal  government  is  a  government  of  limited 
power,  which  it  cannot  rightfully  transcend  or  disre- 
gard. Its  powers  are  to  be  ascertained  by  a  resort  to 
the  constitution  of  the  United  States,  not  as  a  compact 
or  treaty,  but  as  a  system  of  government ;  and  they  are,  in 
the  language  of  the  resolution  of  Virginia,  limited  by  the 
plain  sense  and  intention  disclosed  in  and  by  the  instru- 
ment. In  this  particular  the  resolution  is  true,  and  cannot 
successfully  be  repudiated  or  denied.  Suppose  the  gov- 
ernment, in  some  instance,  has  jpassed,  or  shall  pass  be- 
yond its  limit,  who  is  to  determine  the  existence  of  the 
error,  of  the  evil,  and  correct  its  effect  ?  The  constitution 
has  provided  for  this  supposed  contingency  by  conferring 
upon  the  judiciary  of  the  United  States  complete  and  full 
jurisdiction  over  all  rights,  all  obligations  or  wrongs  which 
can  or  may  exist  or  arise  under  or  against  the  constitution 
of  the  United  States,  or  under  treaties  or  laws  made  or 
assumed  to  have  been  made  under  or  against  its  autho- 
rity. This  is  a  peaceful,  constitutional,  and  adequate 
remedy,  under  the  federal,  as  it  is,  in  matters  appertain- 
ing thereto,  under  the  state  sovereignty.  In  the  hands 
of  an  intelligent,  learned,  and  honest  judiciary,  the  rights 
of  the  people  always  have  been,  and  always  will  be  safe. 
It  is  in  the  power  of  the  people  at  all  times  to  have  an 
intelligent,  learned,  and  honest  judiciary.  They  cannot, 
therefore,  have  an  occasion  for  aid  from  any  false  or  dan- 
gerous assumption  of  power. 

I  have  referred  to  this  subject  for  the  purpose  of  im- 
pressing upon  your  minds,  that  our  system  of  govern- 


ol6  THE    SCIENCE    OF    GOVERNMENT. 

ment  is  a  system  of  iustitutions,  of  departments,  of  law, 
in  and  by  which  your  rights  are  upheld. 

A  supposed  right  of  secession  has  been  occasionally  set 
up  by  politicians.  It  has  not  acijuired  so  much  celebrity, 
and  has  not  been  advocated  with  so  much  power  or 
ability,  as  have  been  exhibited  in  support  of  nullification. 
If  either  of  the  theories  can  be  sustained,  upon  logical 
or  political  considerations,  secession  has  the  advantage. 
One  of  these  theories  assumes,  that  a  state,  by  virtue  of 
its  supposed  compact,  may  continue  in  the  association,  as 
a  member  or  contracting  party,  and  may  yield  obedience 
to  the  laws  and  institutions  of  the  association,  so  far  and 
so  long  as  they  may  be  convenient  and  agreeable,  and 
may  resist  and  reject  its  laws  and  institutions  whenever 
they  may  be  considered  inconvenient  and  disagreeable. 
Secession,  as  generally  understood  by  its  advocates,  is  a 
right  in  an  individual  state  sovereignty  to  withdraw  from 
its  supposed  compact  with  the  association,  and  unfold  its 
banner,  as  an  independent  sovereignty,  free  from  every 
restraint  by,  or  obligation  to,  the  union,  or  to  the  other 
states  composing  the  union.  This  theory  does  not  regard 
the  federal  government  as  a  system  established  by  the 
people  independent  of  state  sovereignty,  although  with 
the  consent  of  the  several  states ;  but  proceeds  upon  the 
ground,  that  the  several  states  by  becoming  members  of 
the  union,  have  temporarily  surrendered  some  portion  of 
their  sovereignty,  which  they  may  resume  at  pleasure ; 
that  the  state  governments,  in  their  relation  to  the  union, 
are  not  limited  jurisdictions,  charged  and  intrusted  only 
with  the  execution  of  a  certain  portion  or  quantity  of 
political  trusts.  If  such  be  the  true  theory  of  the  system, 
secession  is  an  undoubted  right,  and  may  be  exercised  by 
any  and  by  every  state  at  will.  The  federal  sovereignty, 
in  this  view,  is  altogether  ideal  and  fallacious ;  and  we 


THE    SCIENCE     OF     GOVERNMENT.  317 

live  under  one,  and  only  one  sovereignty  or  jurisdiction, 
which  is  that  appertaining  to  the  state.  On  the  other 
hand,  if  the  system  be  such  as  I  have  attempted  to  show, 
secession  has  no  existence  as  a  right,  and  cannot  be  exer- 
cised by  any  state,  or  by  any  number  of  states.='= 

The  constitution  of  the  United  States,  as  I  have  often 
remarked,  was  estabhshed  by  the  people,  as  and  for  a  gov- 
ernment of  the  people,  and  not  as  a  government  of  states 
or  sovereignties.  The  several  states  were  not  obliged  to 
surrender  a  portion  of  their  sovereignty  to  the  people, 
and  thereby  sutler  or  permit  a  transfer  of  such  surren- 
dered portion  of  their  powers  to  another  institution  or 
sovereignty.  The  doctrine  of  secession  proceeds  upon  a 
supposition,  that  the  depository  of  power  under  our  sys- 
tem is  nominally  twofold,  but  in  fact  is  individual  and 
exclusive  in  the  several  states.  I  say  the  depository  of 
power  is  regarded  as  twofold,  upon  this  theory,  because 
the  power  of  the  union  is  admitted,  as  a  rightful  jurisdic- 
tion, proceeding  for  the  time  being,  hand  in  hand  with 
the  several  states  until  the  state  shall  secede,  and  take 
with  it  all  power.  If  I  have  succeeded  to  any  extent, 
however  faintly  or  feebly,  in  presenting  our  system,  you 
cannot  fail  to  have  seen,  that  the  depositories  of  power 
are  three  :  the  people,  the  state  sovereignty,  the  federal 
government.  These  together  constitute  a  perfect  whole. 
No  one  of  the  three  can  enlarge  its  own  power,  or  dimin- 
ish that  of  either  of  the  others,  so  long  as  the  system 
remains.  No  two  of  them  can  destroy  the  third,  except 
by  an  unauthorized  exercise  of  power  which  the  system 
does  not  contemplate  as  a  probable  contingency ;  which 
the  people  of  the  United  States  will  not  permit,  until 

*  Those  who  may  Avish  to  combat  the  positions  of  the  writer,  may  examine 
^'■Rmde  on  the  Constitution"  and  ^'-  A  Disquisition  on  Government"  hy  Calhoun, 
1  vol.  of  his  Works;  neither  of  which  sustain  the  undoubted  abilities  of  tlic  re- 
spective writers. 


318  THE    SCIENCE     OF     GOVERNMENT. 

their  character  and  habits  shall  be  entirely  changed. 
These  theories  need  only  to  be  stated  to  be  lully  compre- 
hended, and  to  be  rejected  by  every  careiul  and  patriotic 
mind.  They  have  been  produced  by,  and  have  resulted 
from,  an  undefined,  supposed  theory  of  state  rights. 

These  terms  (state  rights)  may  be  used,  with  reference 
to  the  several  states  appropriately ;  they  may  be  used, 
and  generally  have  been  used  inappropriately,  and  with- 
out any  definite  meaning.  The  several  states  have  cer- 
tain powers,  duties,  and  trusts,  in  relation  to  wliich  they 
are  independent  and  supreme,  and  are  not  and  cannot  be 
controlled  in  their  exercise  by  the  federal  government. 
In  these  particulars  they  are  responsible  only  to  their  sev- 
eral constitutions,  and  to  the  citizens  within  their  respec- 
tive limits  and  jurisdiction. 

These  are  state  rights  which  every  citizen  is  bound  to 
respect,  which  are  to  be  sustained  and  upheld  in  the  mode 
and  in  the  manner  which  the  system  has  provided  for 
their  protection.  The  United  States,  the  union,  have 
rights,  which  are  to  be  upheld  in  the  mode  prescribed. 
These  rights  are  limited,  but  supreme  and  independent 
within  their  limit.  The  rights  of  these  two  jurisdictions 
are  not  in  opposition  to,  or  in  conflict  with,  each  other. 
Any  attempt  to  enlarge  or  magnify  the  rights  of  the  seve- 
ral states  or  of  the  United  States,  by  a  diminution  or 
destruction  of  those  of  the  other,  or  to  increase  or  extend 
either  the  one  or  the  other  beyond  its  constitutional 
limit,  must  be  unavailing,  or  destructive  of  the  system. 
The  several  states  are  not  endangered,  in  the  possession 
of  their  legal  and  constitutional  rights,  inasmuch  as  the 
federal  government  has  no  power,  except  such  as  is 
derived  under  an  express  grant,  or  by  implication  fairly 
and  reasonably  deduced  from  an  express  grant.  If  the 
terms,  state  rights,  arc  used  as  importing  the  existence  of 
an  uncertain  and  unknown  boundary  between  the  several 


THE     SCIENCE     OF     GOVERNMENT.  319 

states  and  the  federal  government,  and  that  those  who 
regard  the  rights  of  the  several  states  are  bound  to 
extend  the  jurisdiction  which  they  exercise,  so  far  as 
possible  ;  that  the  two  governments  are  in  fact  or  may  be 
in  a  state  of  warfare,  or  contest  for  power,  each  striving 
to  increase  its  own,  regardless  of  the  other ;  they  have  no 
foundation  in  our  system,  in  truth,  or  in  the  fitness  of 
things.  In  this  supposed  sense  or  use  they  are  fallacious, 
dangerous,  and  to  be  disused.  If  they  are  used  as  import- 
ing a  declaration,  that  the  several  states  have  certain 
constitutional  powers,  supreme  and  independent,  which 
are  to  be  watched,  sustained,  and  protected  from  encroach- 
ment, coming  whence  it  may  come,  they  express  a  truth, 
^  and  as  such  are  to  be  respected.  Examine  the  questions 
of  nullification  and  secession,  with  the  aid  of  analogy 
derived  from  the  common  business  of  life.  An  individual 
employs  two  agents,  or  trustees,  to  each  of  which  he  con- 
fides some  portion  of  his  business.  Neither  agent  has  a 
right  to  encroach  ujDon,  or  to  interfere  with,  or  to  take 
upon  himself  the  duties  of  the  other.  These  agents  may 
be  charged  with  duties  which  the  principal  cannot  resume, 
or  Avhich  he  cannot  resume  except  under  a  peculiar  state 
of  facts  provided  for,  by  his  own  voluntary  act. 

The  people  of  the  United  States  have  established  two 
agents,  two  sovereignties,  to  which  they  have  severally 
confided  certain  trusts.  They  have  established  and  given 
written  instructions,  in  the  form  of  constitutions;  they 
have  created  departments ;  they  have  provided  a  mode 
by  which  these  instructions  may  be  varied  and  changed. 
They  have  stipulated,  contracted  with  the  agents  so  ai> 
pointed,  that  the  trusts  so  confided  shall  be  irrevocable, 
until  resumed  in  the  mode  and  in  the  manner  which  they 
have  prescribed  for  their  resumption.  If  this  be  a  true 
and  a  fair  statement  of  our  system,  no  state  can  nullify  the 
acts  of  the  union  ;  no  state  can  resist  or  secede  from  its 


320  THE    SCIENCE    OF    GOVERNMENT. 

organization.  The  people  cannot  control  their  agents, 
except  by  the  right  of  suffrage,  and  by  the  influence 
which  their  opinions,  their  moral  power,  may  rightfully 
command  ;  they  cannot  resume  their  grants  of  power  ex- 
cept by  an  amendment,  legally  made,  of  the  instrument 
by  which  they  may  have  been  conferred.  It  may  be 
suggested  that  the  system,  as  I  have  presented  it,  admits 
of  only  one  construction ;  that  no  difference  of  opinion 
can  exist.  This  is  not  so  ;  the  science  of  government 
cannot  be  defined  with  unerring,  perfect  accuracy.  No 
system  or  form  of  government  can  be  perfect,  or  so  accu- 
rate as  not  to  admit  of  an  honest  difference  of  opinion, 
as  to  the  import  of  its  details,  in  every  particular.  Par- 
ties disagree  as  to  the  force  and  effect  which  should  be 
given  to  this  or  that  provision.  It  does  not  follow, 
that  they  do  not  seek  the  attainment  of  the  same  end,  or 
that  the  system  in  its  great  purpose  may  not  easily  be 
miderstood  or  carried  into  effect.  It  is  equally  true,  that 
a  government  may  constitutionally  have  powers  designed 
to  meet  the  ever  changing  condition  of  civil  society,  which 
may  or  may  not  be  exercised  ;  the  expediency  of  their 
exercise  may  be  a  fair  subject  of  discussion,  and  may  pro- 
duce honest  differences  of  opinion. 

In  the  United  States,  the  science  of  government  must 
be  discussed.  It  is  not  a  matter  in  relation  to  which  a 
knowledge  is,  or  should  be  confided  to  some  select  few 
individuals.  The  people  are  the  source  of  all  political 
power,  and  in  their  hands  it  must  be  productive  of  good 
or  evil.  No  man  can  safely  undertake  to  escape  from  his 
individual  responsibility,  or  to  impose  wpon  others  the 
duties  of  his  station  and  condition,  whatsoever  it  may  be. 
It  should  also  be  remembered,  that  in  this  country  every 
man  is  the  founder  and  the  architect,  to  a  great  extent, 
of  his  condition.  Discussion  must  and  will  be  had ; 
the  people  must  act  with  or  without  knowlege ;  the  insti- 


THE     SCIENCE     OF     GOVERNMENT.  321 

tutions  which  they  have  estabhshed,  furnish  adequate 
means  of  information  to  all  who-  may  desire  its  acquisi- 
tion. These  discussions  have  a  salutary  influence  ;  they 
serve  to  elicit  the  truth ;  they  afford  sources  of  informa- 
tion useful  to  those  charged  with  a  performance  of  the 
public  trusts.  More  than  this,  they  produce  a  healthy 
action  of  the  public  mind,  and  give  to  its  judgment  and 
opinion,  a  moral  force  not  readily  resisted.  In  a  discus- 
sion of  an  abstruse  science,  it  is  essential  to  use  exact 
terms.  In  an  examination  of  the  physical  laws  of  nature, 
cause  and  effect  must  ever  be  regarded.  Equally  clear  it 
is,  that  in  a  discussion  of  any  system  of  government,  pre- 
cision in  the  use  of  language  is  of  the  utmost  importance. 
It  is  not  essential,  it  cannot  be  supposed,  that  the  great 
body  of  the  community  can  abandon  their  daily  pursuits, 
and  become  accurately  conversant  with  all  the  principles 
of  legal  science,  or  with  all  the  propositions  and  deduc- 
tions of  political  economy.  They  can,  however,  acquire 
a  knowledge  of  the  principles  of  right,  of  justice.  These 
principles  constitute  the  foundation,  the  corner-stone  of 
your  system  of  government ;  of  which  system,  one  of  its 
most  valuable  and  important  features  is  shown  in  its  pro- 
vision for  amendment.  Revolution,  nullification,  and 
secession  are  only  different  modes  of  forcible  resistance 
to  the  constituted  authorities  ;  they  are  entirely  displaced, 
so  far  as  right  or  necessity  may  be  concerned,  by  the  pro- 
vision for  amendment,  a  quiet,  humane,  and  effectual 
remedy,  when  properly  applied,  for  the  evils  for  the  cor- 
rection of  which  in  many  systems,  such  forcible  measures 
are  and  may  be  regarded  as  fit  and  available.  In  mili- 
tary language,  I  admonish  you  to  stand  by  your  arms, 
which  are  your  constitutions  and  their  institutions. 

41 


LECTURE    XII. 


THE  DANGERS  AND  CAUSES  OF   DANGER  INCIDENT   TO   TIIE   SYSTEM.— TIXE   REMEDY 
OR  MEANS  OF  AVOIDANCE. 


The  construction  of  the  system  of  government  under 
which  you  live,  has  been  presented  for  your  considera- 
tion. Many  of  the  prominent  incidents  connected  with, 
or  growing  out  of  the  system,  have  been  the  subject  of 
reference  and  consideration.  An  endeavor  has  been 
made  to  exhibit  the  relation  and  purpose  of  its  different 
parts.  If  you  shall  be  disposed  to  follow  out,  and  ex- 
amine the  suggestions  which  have  been  made,  although  you 
may  regard  them,  in  some  particulars,  as  unsound  and  erro- 
neous, you  will  discover  at  every  step,  the  same  general 
principles  and  object.  These  principles,  and  the  purpose, 
so  far  as  I  have  been  enabled  to  discover  them,  may  be 
expressed  in  few  words.  An  intelligent,  well  educated 
people,  are  competent  to  establish  political  institutions, 
by  the  means  of  which,  and  through  the  instrumentality 
of  departments  appertaining  thereto,  they  may  indirectly 
and  ultimately  be  the  source,  and  the  agents  for  the  ex- 
ecution of  all  and  every  political  power,  essential  to  the 
maintenance  of  a  chastened,  well  regulated  civil  society. 
In  any  survey  which  you  may  make,  of  the  history  and 
progress  of  your  country,  of  the  character  of  those  who 


324  THE     SCIENCE     OF     GOVERNMENT. 

first  lauded  upon  a  ueiglibouring  shore,  you  will  fiud 
mauy  things  worthy  your  respectful  consideration.  The 
original  discovery  of  the  country,  must  be  regarded  as  an 
event  or  fact,  the  consequence  of  which  no  man  can  pre- 
dict. The  declaration  of  independence,  by  its  boldness 
and  sublimity,  admonished  and  astonished  the  civilized 
world,  and  gave  to  the  inalienable  rights  of  man  an  im- 
press and  form  which  they  had  not  previously  attained. 
You  may  recur  to  these  events  with  admiration,  and  even 
exultation.  It  is  your  privilege  so  to  do.  Mightier  than 
these  events,  is  an  event  which  followed.  Mightier  than 
these  was  and  is,  the  act  by  which  the  federal  constitution 
disclosed  the  science  of  government,  as  exhibited  in  the 
institutions  of  the  United  States.  Is  the  system  therein 
disclosed  perfect,  or  free  from  danger  ?  It  would  be  pre- 
sumption to  say  that  it  is.  Every  system,  every  institu- 
tion of  human  invention,  every  individual  is  surrounded 
by  danger,  by  many  and  constant  causes  of  danger. 

Some  of  the  dangers  applicable  to  our  system  will  be 
suggested  briefly,  from  which  you  will  perceive  the  cha- 
racter of  others.  They  are  twofold,  external  and  inter- 
nal. The  external  causes  of  danger  are  remote.  The 
territorial  position  of  the  United  States  does  not  invite 
foreign  aggression,  or  render  it  easy.  Many  of  the  coun- 
tries and  governments  of  Europe  are  territorially  near 
each  other ;  they  are  obliged,  therefore,  to  some  extent, 
to  guard  themselves,  by  guarding  and  watching  their 
neighbors ;  this  has  induced  some  of  them  to  encourage, 
and  to  insist  upon  the  maintenance,  between  themselves, 
of  a  balance  of  power.  The  construction  of  many  of  the 
European  systems  of  government  affords  an  opportunity, 
to  those  who  govern,  to  use  the  government  and  its 
power  for  the  gratification  of  personal  ambition.  The 
dangers  which  surround  such  governments  are  constant, 
are  imminent.     The  United  States  are  not  immediately 


THE     SCIENCE     OF     GOVERNMENT.  325 

liable  to  similar  dangers.  Foreign  nations  being  remote, 
and  having  trusts  of  their  own  which  require  attention, 
will  not,  under  ordinary  circumstances,  interfere  with  or 
molest  our  country.  The  governments  upon  the  conti- 
nent of  North  America,  not  subject  to  the  federal  govern- 
ment, have  no  inducement  to  make  aggression  upon  their 
neighbor;  if  such  inducement  should  hereafter  exist, 
their  power  and  ability,  unless  aided  from  abroad,  is  not, 
and  probably  may  not  be  such  as  to  excite  uneasiness. 
Unless  the  United  States  shall  undertake  to  exercise  a 
general  supervision  over  the  affairs  of  foreign  govern- 
ments, or  shall  unreasonably  neglect  to  perform  their 
duty,  to  maintain  their  own  self-respect,  no  serious  or 
important  danger,  or  cause  of  danger,  can  arise  from  any 
external  source. 

The  internal  dangers,  and  the  sources  from  which  such 
dangers  may  come,  are  of  a  more  important  character, 
and  are  more  numerous.  These,  or  some  of  them,  will 
be  suggested.  Extent  of  territory  has  been  often  sug- 
gested as  one  of  the  circumstances  or  facts  from  which 
danger  to  our  institutions  may  be  apprehended.  That 
the  government  cannot  extend  its  protection  to  the  ex- 
treme points  of  an  enlarged  territorial  jurisdiction  ;  that 
the  distance  which  must  exist  between  cause  and  effect 
in  an  enlarged  territorial  jurisdiction,  will  operate  to 
diminish  the  one  and  exclude  the  other  from  observa- 
tion. This,  as  a  proposition  considered  by  itselfj  without 
reference  to  other  facts  or  circumstances,  may  and  must 
be  regarded  as  sound.  Government  must,  in  the  nature 
of  things,  be  limited  to  a  territory  accessible  at  all  times, 
and  over  which  its  power  may  be  rendered  available, 
without  suffering  diminution  from  distance  or  delay  in 
its  execution.  No  government  can  safely  undertake  to 
extend  its  power  over  the  whole  globe.  An  effort  by 
any  government  so  to  do  would  prove  useless,  and  of  no 


326  THE     SCIENCE     OF     GOVERNMENT. 

avail  for  such  purpose.  A  limit  of  territory  must,  there- 
fore, be  applied  to  every  government.  This  limit  cannot 
be  determined  by  any  known  fixed  standard.  A  conti- 
nent or  territory  standing  by  itself  may  be  managed  and 
controlled  by  the  same  system  or  sovereignty,  more  easily 
than  the  same  extent  of  territory  can  be  which  is  in  the 
immediate  vicinity  of  territory  subject  to  other  govern- 
ments, between  wdiich  there  must  be  intercourse  and  re- 
lations of  trade,  legal  or  illegal.  So  far  as  proximity  of 
one  country  to  another  bears  upon  this  matter,  the  posi- 
tion of  the  territory  which  composes  the  United  States  is 
favorable.  Many  other  circumstances  have  a  bearing 
upon  any  determination  which  can  be  made  upon  this 
subject.  Extent  of  territory  may,  by  its  magnitude,  pro- 
duce a  difference  of  climate,  difference  of  thought,  and  a 
diversity  of  interest.  The  settlement  of  the  country 
known  as  the  United  States,  was  not  made  by  people  of 
the  same  origin.  Difierent  sections  of  the  country  origi- 
nally presented  this  feature  in  our  history  in  distinct  and 
marked  boundaries,  wdiich  have  not  disappeared.  AVhen- 
ever  a  body  of  men  leave  the  land  of  their  birth,  to  com- 
mence a  new  work  of  enterprise  in  a  foreign  land,  they 
may  abandon  their  early  home,  but  its  associations,  its 
recollections,  and  many  of  its  institutions  will  continue 
to  occupy  the  mind,  and  to  some  extent  direct  its 
energies  in  their  accustomed  channels.  In  one  state, 
at  least,  of  the  union,  the  civil  law  constitutes,  with  few 
exceptions,  the  basis,  furnishes  the  principles  by  which 
its  legislation  is  modified  and  characterized.  The  law  of 
France,  of  Spain,  so  far  as  the  principles  and  matters  of 
personal  right  are  involved,  determine,  in  some  portion 
of  our  country,  the  ascertainment  and  enforcement  of  pri- 
vate right.  In  other  sections  of  our  territory,  the  civil 
law,  the  principles  of  the  law  of  France  or  of  Spain,  have 
no  force  or  abiding  place.     Our  country  also  has  within 


THE     SCIENCE     OF     GOVERNMENT.  327 

its  bound  different  climates.  A  result,  by  the  law  of  na- 
ture which  no  man  can  control,  from  this  fact,  may  be 
perceived  in  the  habits  of  the  people.  At  one  extreme 
of  the  United  States,  its  citizens  are  staid,  matter  of  fact 
men,  wrapped  in  a  mantle  of  winter,  which  covers  l)ody 
and  mind.  In  another,  a  more  genial  sun  gives  life  and 
vivacity  to  the  scenes  of  every  hour  and  of  every  day ; 
here  the  present  is  ever  more  beautiful  and  joyous  than 
an  apparently  unheeded,  unknown  future  can  be. 

The  circumstances  to  which  reference  has  been  made, — 
extent  of  territory,  diversity  of  habit  and  of  interest, 
naturally  must  be  regarded  as  sources  from  which 
danger  may  be  apprehended.  When  they  are  consid- 
ered with  reference  to  our  system  of  government,  with 
reference  to  the  actual  condition  of  the  United  States,  un- 
less our  territory  shall  be  enlarged,  and  the  diversity  of 
habit  and  interest  which  may  result  from  an  enlarge- 
ment shall  be  increased  and  become  more  diverse,  they 
cannot  be  regarded  as  serious  cause  of  danger.  The  reason 
which  induces  this  position  is  deduced  from  the  division 
of  sovereignty  which  our  system  exhibits.  Our  foreign 
relations  are  not  controlled  by  extent  of  territory  or  by 
diversity  of  local  interests.  The  federal  government  has 
the  exclusive  management  of  such  relations.  Extent  of 
territory,  and  diversity  of  interest,  are  not  applicable  to 
the  state  governments  as  separate  and  independent  sove- 
reignties. The  several  states  each  extend  to  a  small 
territory,  and  the  interests  and  habits  of  the  people  of  a 
particular  state  are  not  diverse,  with  reference  to  them- 
selves ;  they  are  so  with  reference  to  other  states,  so  that 
these  causes  of  danger,  of  apprehension,  do  not  in  fact 
exist,  in  relation  to  the  state  governments,  by  which  all 
local  matters  are  regulated.  Another  prominent  sup- 
posed cause  of  danger  may  be  found  in  an  alleged  ten- 
dency to  consolidation.     It  has  often  been  urged  that  the 


328  THE    SCIENCE    OF    GOVERNMENT. 

federal  government  inclines  to  attain  the  possession  of 
greater  power  than  it  can  or  should  rightfully  exercise. 
Thus  far,  no  such  intent  has  been  carried  into  effect  by  any 
encroachment  upon,  or  diminution  of,  the  legitimate  rights 
of  the  several  states.  Our  past  experience  shows,  that 
the  federal  government  has  been  more  frequently  the 
object  of  attack  than  the  state  government.  Those  who 
urge  consolidation  as  a  possible  or  probable  ground  of 
danger  and  difficulty,  do  not  urge  the  corruption  of  the 
people  as  the  cause,  although  the  theory  cannot  be  true, 
except  upon  an  assumption  that  they  are  corrupt  or  may 
be  corrupted.  The  officers  of  the  federal  government 
are  chosen  by  the  people,  or  by  their  representatives  or 
agents,  over  whom  they  have  control.  If  the  people  are 
true  to  themselves ;  if  they  elect  competent  and  honest 
individuals  to  discharge  the  trusts  of  the  federal  govern- 
ment, no  consolidation  can  take  place.  The  several  states 
cannot  be  deprived  of  their  rights,  their  authority  and 
powers  cannot  be  diminished  or  transferred  to  another 
government,  except  by  the  action  of  their  own  citizens ; 
and  it  cannot  well  be  supposed,  that  they  will  conspire  or 
cooperate  to  destroy  themselves. 

In  our  system  of  government  the  legislative  depart- 
ment has  more  power  than  any  other  department.  The 
individuals  which  compose  it  are  more  numerous  than 
those  of  other  departments,  and  from  this  and  from  other 
causes,  are  more  easily  corrupted.  They  are  more 
directly  within  the  power,  and  under  the  control  of  the 
people,  than  are  the  individuals  of  any  other  department. 
Their  corruption,  their  incompetency,  their  inclination  to 
consolidation  can  be  prevented  and  corrected,  if  need  be, 
by  an  exercise  on  the  part  of  the  people  of  their  right 
of  suffi'asre. 

Another  barrier  against  consolidation  is  found  in  the 
independence,   learning,   and   integrity   of  the    judicial 


THE    SCIENCE     OF     GOVERNMENT.  329 

department.  All  our  institutions,  including  those  of  sove- 
reignty, are  limited  by  written  constitutions ;  and  if  the 
legislative  or  executive  departments  shall  attempt  to 
transcend  their  rightful  jurisdiction,  they  may  ordinarily 
be  repressed  and  restrained  by  the  judicial  department. 

The  federal  government  must  adhere  to  its  system,  to 
its  duties,  and  cannot  successfully  usurp  power,  until  all 
its  departments  shall  become  faithless  and  corrupt.  They 
cannot  attain  such  position,  until  and  unless  a  large  pro- 
portion of  the  entire  people  become  corrupt,  and  willing 
to  destroy  themselves.  The  danger  of  consolidation, 
therefore,  and  of  the  perversion  and  destruction  of  the 
rights  of  the  people,  must  be  regarded  as  ideal  and  fan- 
ciful, and  not  substantial,  inasmuch  as  it  cannot,  from  our 
past  history,  be  inferred  that  the  peojDle  will  readily  be- 
come the  instruments  of  their  own  destruction,  of  their 
own  degradation.  Such  a  result  cannot  be  imputed  to, 
or  derived  from,  the  character  of  the  people,  or  their 
system. 

Another  source  of  danger  may  occasionally  be  found 
in  a  resistance  of  some  few  of  the  joopulace,  to  law,  to 
the  constituted  authority.  It  cannot  be  supposed,  that 
the  legislation  of  the  federal  or  of  the  state  sovereignty 
wall  always  be  acceptable  to  the  entire  people.  In  some 
instances,  dissatisfaction  may  extend  to  a  large  proportion 
of  the  community.  Legislation  cannot  rightfully  be 
resisted  by  force,  although  it  may  be  disapproved,  more  or 
less  extensively,  by  this  or  that  portion  of  the  commu- 
nity. If  any  particular  legislation  is  or  may  be  uncon- 
stitutional, the  courts  of  law  are  bound  to  resist  and  to 
reject  its  supposed  validity,  to  relieve  the  citizen  from  its 
control.  It  may,  without  boasting,  be  said,  that  the  judi- 
ciary of  our  country,  state  and  national,  has  had  the 
moral  courage  to  do  its  duty  ;  and  I  doubt  not,  it  will  con- 

42 


330  THE     SCIENCE     OF     GOVERNMENT. 

tinue  to  exhibit  a  fearless  regard  for  tlio  people  and  for 
their  rights. 

Ill  the  course  of  the  discussions  which  you  have  heard, 
in  some  few  instances  1  have  dissented  from  judicial 
opinion  ;  whenever  I  have  so  done,  I  have  stated  the  fact, 
and  have  given  the  reasons  of  my  opinion,  adding  that 
the  adjudications  of  the  judiciary,  until  changed  by  the 
power  which  made  them,  are  to  be  regarded  as  the  law  of 
the  land,  however  they  may  difler  from  my,  or  from 
your  opinion. 

If  legislation  is  injudicious,  or  in  its  effect  unnecessa- 
rily inconvenient,  or  restrictive  of  the  business  and  inte- 
rests of  the  community,  the  people,  by  its  peaceable 
expression  of  opinion,  through  the  press,  and  by  means 
of  private  conventions  and  correspondence,  can  correct 
and  control  it.  If  public  opinion  so  expressed  shall  prove 
inadequate,  by  the  exercise  of  the  right  of  suffrage,  the 
people  can  effectually  cure  the  evil  by  a  change  of  the 
legislators,  and  of  those  who  discharge  the  trusts  of  gov- 
ernment. Resistance  to  law  by  force,  therefore,  is  not 
essential  to  the  people,  or  to  the  protection  of  their  rights  ; 
and  whenever  adopted,  must  operate  to  diminish,  to 
destroy,  the  institutions  and  the  moral  power  of  the  peo- 
ple. I  have  spoken  of  resistance  to  law,  regarded  as  a 
political  matter.  It  is  regarded  by  some  as  a  moral  ques- 
tion. I  cannot  discuss  it  in  this  aspect,  except  to  say, 
he  who  regards  his  conscience  as  paramount  to  human 
law,  assumes  that  the  dictates  of  his  individual  conscience, 
regardless  of  the  consciences  of  others,  arc  perfect ;  that 
they  may,  that  they  must  be  regarded  by  him  as  the  cer- 
tain, well  authenticated,  unerring  law  of  God ;  an  assump- 
tion which,  in  my  judgment,  cannot  be  sustained  by  or 
deduced  from  any  sound  theory  of  religion,  natural  or 
revealed. 


THE    SCIENCE     OF    GOVERNMENT.  331 

The  admission  of  new  states  may  produce  difficulty  and 
danger.  This  may  arise  in  several  ways.  A  new  state 
cannot  come  into  the  union,  except  its  constitution  shall 
conform  to  that  of  the  United  States,  and  shall  be  ap- 
proved by  the  other  states,  acting  through  their  represen- 
tatives in  congress.  A  new  state  naturally  is  inclined  to 
suit  itself  in  its  local  institutions,  and  is  jealous  of  inter- 
ference by  or  from  its  neighbors.  This  was  distinctly 
perceived  when  Missouri  was  admitted  ;  the  danger,  how- 
ever, passed  away,  notwithstanding,  for  a  time,  it  bore  a 
threatening  aspect.  Another  difficulty  may  arise  from 
the  haste  and  anxiety  with  which  the  people  of  a  terri- 
tory may  wish  to  improve  their  condition,  without  fully 
ascertaining  whether  they  may  have  acquired  sufficient 
strength  and  ability  to  take  care  of  themselves.  New 
states  may  entertain  an  opinion,  that  they  are  not  only 
entitled  to  political  power  equal  to  any  other  state,  (to 
which  they  are  entitled,)  but  are  also  entitled  to  have  an 
extra  protection  and  expenditure  in  their  behalf  from  the 
public  treasury,  so  as  thereby  to  be  placed  upon  an 
equality,  in  the  extent  of  their  wealth  and  business,  with 
the  states  of  an  earlier  origin.  In  private  life,  it  is  not 
unusual  to  find  young  people  unwilling  to  begin  the 
active  pursuits  of  life,  in  a  moderate,  unostentatious  man- 
ner, as  their  fathers  may  have  begun ;  so  it  may  be  with 
new  states. 

Slavery  is  an  evil,  a  danger ;  it  is  surrounded  with 
cause  of  danger.  It  has  no  existence  in  the  law  of 
nature.  It  is  not  in  accordance  with,  but  is  an  exception 
to,  the  general  political  theory  upon  which  our  institu- 
tions rest.  It  is  local  in  its  character  ;  and  Avheresoever  it 
does  exist,  it  is  by  force  of  the  local  or  municipal  law  of 
the  territory,  within  and  by  which  it  may  be  established. 
No  intendment  or  presumption  is  made  in  favor  of  its 
existence,   by   any   general,    fundamental    public    law. 


332  THE    SCIENCE     OF     GOVERNMENT. 

Whenever,  or  wherever  its  existence  may  or  shall  be 
asserted,  it  must  be  proved.  When  the  federal  constitu- 
tion was  adopted,  slavery  existed  in  many  of  the  several 
states,  by  and  under  their  respective  individual  and  local 
law.  As  a  matter  of  compromise,  those  who  prepared 
the  constitution  permitted  it  to  exist,  by  and  under  the 
local  law ;  and  so  far  as  it  is,  or  was  by  that  instrument 
permitted  to  exist,  it  is  upheld  and  sustained,  in  and  by 
the  same  instrument.  Its  ultimate  extinction,  its  final 
remedy,  is  within  the  control,  and  is  under  the  guidance 
of  God.  Its  remedy,  so  far  as  you  and  your  system  of 
government  are  or  may  be  concerned,  may  be  stated  in 
few  and  simple  terms :  that  remedy  is,  let  it  alone ;  leave 
it  where  the  constitution  of  your  country  has  left  it. 
The  election  of  President,  and  in  connection  therewith, 
a  desire  of  office,  of  station,  and  political  place  and  in- 
fluence, may  become  the  cause  or  source  of  difficulty  and 
danger.  The  constitution  of  the  United  States  has  pro- 
vided for  the  election  of  President,  by  the  intervention 
and  agency  of  electors.  The  theory  and  provision  of 
the  constitution  upon  this  subject  is,  that  the  people, 
voting  in  the  several  states  of  which  they  are  citizens, 
will  elect  for  this  important  trust  men  of  experience,  of 
intellect,  and  character,  who  may  have  acquired  a  knowl- 
edge of  the  fitness  and  capacity  of  those  who  may  pro- 
pose or  be  proposed,  for  the  presidency.  That  the 
electors  so  chosen  will  discharge  the  trust  confided  in 
accordance  with  their  judgment,  improved  and  corrected 
by  any  and  all  information  or  suggestion  which  they  may 
possess,  or  have  received,  bearing  upon  the  selection  to 
be  made,  keeping  in  mind  the  character  and  responsi- 
bility of  the  trust  reposed,  not  forgetting  their  duty  to 
themselves,  to  their  constituents,  to  their  country.  These 
electors  are  officers  or  agents  known  to  the  law,  to  the 
constitution ;  and  as  such,  should  discharge  the  duty  which 


THE    SCIENCE     OF     GOVERNMENT.  333 

the  law,  which  the  constitution  imposes.  An  adherence 
to  this  theory  of  the  constitution  has  in  form  been  pre- 
served. In  reahty,  its  spirit  has  departed ;  and  the  Presi- 
dent of  the  United  States  is  now  practically  chosen  by 
some  one  of  two  or  more  private  party  conventions  or 
caucuses,  convened  under  the  auspices  and  patronage  of 
the  different  party  organizations  which  pervade  the 
country. 

These  conventions  are  not  peculiar  to  any  particular 
party,  but  all  parties  have  resorted  to  them  as  a  mode  of 
ascertaining  and  expressing  their  respective  preference. 
The  electors,  when  chosen,  discharge  their  supposed  duty, 
by  casting  their  votes  for  the  person  selected  by  the  poli- 
tical caucus  of  the  party  to  which  they  may  be  person- 
ally attached.  These  conventions  had  their  origin  in  the 
fact,  that  they  furnished  a  convenient  mode  of  ascertain- 
ing and  concentrating  public  opinion,  from  and  in  every 
part  of  the  country ;  their  continuance  has  been  occa- 
sionally encouraged  and  sanctioned  by  politicians,  parti- 
sans, ofl&ce  holders,  and  office  expectants.  They  may  pro- 
duce evil,  and  they  may  ^ot ;  they  are  merely  jDrivate 
organizations,  unknown  to  the  law,  and  have  no  official 
or  personal  responsibility  which  can  be  reached.  If  the 
members  of  these  conventions  shall  be  chosen,  without 
any  improper  or  undue  practice  or  management  imposed 
upon  the  people  ;  if  they  shall  be  men  of  integrity,  re- 
gardful of  the  public  rights  and  duties,  no  apprehension 
of  danger  can  arise.  On  the  other  hand,  whenever  these 
conventions  shall  be  the  result  of  intrigue,  or  shall  be 
composed,  to  any  considerable  extent,  of  office  holders  or 
office  expectants,  danger  may  and  must  be  produced  by 
their  action. 

Another  source  of  danger  may  be  found  in  efforts  on 
the  part  of  the  several  states  or  of  their  citizens,  to  en- 
croach  upon  and  to  diminish,  the  rightful   jurisdiction 


334  THE    SCIENCE    OF    GOVERNMENT. 

of  the  federal  sovereignty.  Efforts  of  this  description 
should  be  resisted,  should  be  regarded  in  the  same  man- 
ner as  efforts  to  produce  consolidation  arc  or  may  be. 

If  the  one  or  the  other  sovereignty,  shall  successfully, 
for  any  length  of  time  or  in  any  important  particular, 
improperly  enlarge  its  power,  the  system  of  government 
under  wliich  Me  live  will  be  shaken  ;  and  it  matters  not, 
whether  the  disarrangement  shall  come  from  the  state  or 
the  federal  branch  of  our  system.  Of  the  same  class  and 
character  is  interference  by  any  one  of  the  several 
states  in  the  affairs  of  another,  which,  whenever  attempted, 
must  produce  angry  and  excited  feelings,  which  may  be 
easily  produced,  but  not  easily  subdued. 

Another  source  of  danger  exists  in  an  inclination  not 
uncommon  in  persons  holding  official  station,  to  attend  to 
the  business  of  other  official  persons,  by  unsolicited  coun- 
sel, over  whom  they  have  no  power  or  control.  The 
governor  and  the  general  court  of  a  state,  have  in  many 
instances  undertaken,  in  their  official  character  and  sta- 
tion, to  approve  or  disapprove  some  act  of  the  president, 
or  of  the  congress,  over  which  no  state  or  state  officer  as 
such  has  or  can  have  any  authority.  This  course  is  not 
susceptible  of  good,  in  any  case ;  it  may  be  productive  of 
great  difficulty.  The  chief  executive  officer  of  a  state 
may  discuss  the  condition  and  business  of  the  community 
over  which  he  exercises  an  authority,  and  may  consider 
the  operation  and  influence,  which  may  have  been  pro- 
duced upon  the  people  or  their  business  by  the  laws 
which  operate  upon  them,  including  those  of  the  United 
States.  Whenever  such  officer  comments  upon  the  offi- 
cial acts  of  the  federal  sovereignty  with  approbation  or 
disapproval,  with  intent  to  bear  upon  any  party  politics 
or  organization,  he  disregards  the  dignity  of  his  station, 
and  thereby  may  bring  reproach  ujion  it.  A  general 
court  of  a  state  may  rightfully  suggest  to  congress  the 


THE    SCIENCE     OF     GOVERNMENT.  335 

propriety  of  an  amendment  of  the  constitution  of  the 
United  States^nd  may  request  its  accompHshment ;  and 
if  a  sufiicient  number,  two  thirds  of  the  several  states, 
concur  in  a  similar  application,  an  amendment  may  be 
obtained.  Whenever  the  general  court  of  a  state  under- 
takes officially  to  pass  judgment  upon  matters  without 
its  jurisdiction,  it  can  have  no  influence,  and  such  course 
is  objectionable. 

In  every  part  of  our  system,  limitations  of  power  and 
of  authority  are  found.  Each  sovereignty,  every  de- 
partment, and  every  officer  acts  under  and  upon  a  limited 
trust,  for  the  exercise  of  which  those  charged  therewith, 
and  those  only,  are  responsible,  and  no  one  should  attempt 
to  go  above  or  below  his  station,  or  its  duties. 

In  all  the  private  transactions  of  life  in  which  an  in- 
dividual employs  two  or  more  distinct  agents  for  several 
and  distinct  purposes,  one  agent  does  not  and  cannot  un- 
dertake to  pass  judgment  upon,  or  control  the  conduct 
of  the  other.  This  principle  is  alike  applicable  to  politi- 
cal and  commercial  agencies.  Persons  holding  office 
under  any  one  of  the  several  states,  acting  as  private 
citizens  and  not  officially,  by  petition,  memorial,  remon- 
strance, or  through  the  press,  and  in  various  ways,  may 
rightfully  comment  upon  the  conduct  and  acts  of  any 
and  of  every  public  officer  or  department.  Such  com- 
ment should  receive  the  consideration  which  its  reasons, 
or  the  character,  position,  and  intelligence  of  its  authors 
may  rightfully  command.  The  moral  power  of  a  citizen, 
properly  exerted,  is  of  great  value  and  import.  He  has 
a  right  to  express  his  views,  and  it  may  be  his  duty  to 
express  them.  It  is  not  the  duty  of  an  agent  to  inter- 
meddle in  the  agency  of  another ;  such  interference  by 
and  between  political  agents  has  and  should  have  no 
moral  power. 

Another  source  of  evil  may  arise  from  the  existence 


336  THE     SCIENCE     OF    GOVERNMENT. 

of  self-constituted  advisers,  not  known  to  or  recognized 
by  the  law ;  persons  who,  for  the  public  good,  voluntarily 
and  without  any  ostensible  personal  interest,  undertake 
to  exercise  upon  legislative  and  other  departments,  an 
outside,  external  influence. 

Individuals  who  have  private  interests  which  may  be 
entitled  to  protection,  assert  them  by  petition,  or  in 
some  other  open  legal  manner,  and  the  focts  and  rights 
dependent  thereupon,  are  ascertained  and  protected,  so 
far  as  legally  or  equitably  they  may  be,  and  such  course 
is  free  from  objection.  Any  effort  to  influence  legis- 
lation for  public  or  private  interests,  in  any  other 
than  such  open  application  and  hearing,  must  be  re- 
garded, in  the  language  of  underwriters,  extra  hazardous. 

One  of  the  inducements  to  locate  the  seat  of  the  na- 
tional government  at  the  place  in  which  it  now  is,  had 
its  origin  in  the  fact,  that  the  city  of  Washington  was 
thinly  inhabited,  thus  affording  to  the  members  of  con- 
gress and  of  other  departments,  an  opportunity  to  pursue 
their  several  occupations  free  from  the  annoyance  and 
evil,  which  otherwise,  it  was  supposed,  might  result  from 
external  influence.  Influence  of  this  character,  I  have 
no  doubt,  has  been  and  is  exerted  in  every  state  of  the 
union,  frequently,  and  perhaps  always,  without  improper 
or  unlawful  intent.  I  have  no  doubt  sound  and  proper 
legislation  may  have  been  facilitated  by  such  influence, 
exerted  from  honorable  and  praiseworthy  motives.  The 
motive  which  may  induce  such  action,  the  good  which 
may  result  therefrom,  does  not  authorize  the  encourage- 
ment, approbation,  extension,  or  continuance  of  any  in- 
fluence, except  such  as  may  be  exerted  in  a  manner 
which  the  system  contemplates.  Information  of  the  con- 
dition of  the  country,  of  its  business  operations,  and  of  its 
rights  and  duties,  may  be  had  by  any  and  every  ofiicer 
or  department,  which  has  or  may  have  occasion  for  its 
possession  or  use. 


THE     SCIENCE     OF     GOVERNMENT.  337 

Temporary  evil  has  occurred,  and  from  the  natm^e  of 
our  sj^stem  will  occur,  from  and  by  an  occasional  election 
to  office  of  persons  whose  character  and  qualifications 
have  not  been,  and  may  not  be  commensurate  with  the 
duties  of  the  station  to  which  they  may  have  been 
appointed. 

Immigration  is  a  source  from  which  difficulty  may 
arise.  Some  individuals  regard  it  as  a  subject  fraught 
with  danger,  and  as  a  cause  of  great  apprehension  and 
fear.  Others,  looking  at  it  from  an  opposite  extreme, 
regard  it  as  a  matter  free  from  any  and  all  danger  or 
cause  of  anxiety. 

In  this,  as  in  all  other  matters  which  appertain  to  or 
are  connected  with  our  system,  extreme  views  are  to  be 
rejected  and  disregarded.  At  an  early  period  of  our  his- 
tory, immigration  was  sought,  solicited,  and  encouraged. 
At  all  times  it  has  been  regarded  with  favor ;  and  we 
have  virtually  announced  to  the  world,  that  America 
affords  a  safe  retreat  from  the  supposed  political  ills  and 
evils  of  other  countries.  Our  country  has  been  benefited 
by  immigration  in  many  particulars  ;  foreigners  have  ren- 
dered services  which  should  not  and  cannot  be  disregarded 
or  forgotten.  Immigration  may  produce  evil,  although,  at 
the  present  time,  it  may  and  must  be  considered  remote. 
Land  unoccupied,  capable  of  cultivation  and  improve- 
ment, is  abundant,  and  it  affords  opportunity  for  the  in- 
dustrious to  obtain  a  comfortable  home.  The  rights 
and  privileges  of  an  American,  so  long  as  they  shall  be 
maintained,  cannot  be  diminished  in  value,  because  they 
may  be  enjoyed  by  others.  It  is  undoubtedly  true,  that 
an  individual  who  has  the  moral  courage,  produced  by 
any  cause,  ph^^sical,  moral,  or  political,  to  sever,  to  break 
the  cords  which  may  have  bound  him  to  his  native  land, 
has  the  courage,  the  moral  power  and  al^ility  to  adopt, 
to  mould  himself  to,  the  institutions,  the  habits  of  the 

43 


338  THE    SCIENCE    OF    GOVERNMENT. 

country  of  his  adoption.  So  long  as  this  shall  prove  true 
in  practice,  no  danger  can  arise  from  immigration,  unless 
and  until  our  pojjulation  shall  hecome  greater  than  our 
territory  may  be  adequate  to  support.  Whenever  the 
number  of  those  who  may  here  seek  repose  and  exemp- 
tion from  wrongs  or  inconveniences  suffered  at  home, 
shall  be  so  great  as  to  resist  and  overcome  the  capacity, 
the  power  of  our  institutions  to  assimilate  and  mould 
them,  our  system,  as  a  result,  will  be  endangered.  The 
facilities  afforded  to  aliens  to  obtain  the  benefits  of  citi- 
zenship by  our  laws,  are  greater  than  are  similar  facilities 
in  many  other  countries ;  our  policy  has  been  humane 
and  liberal,  and  it  should  be.  It  should  also  be  mindful 
of  our  own  security  and  self-preservation.  Acquisition  of 
territory  is  a  matter  from  which  danger  may  come.  It 
is  well  calculated  to  produce  danger,  because  the  subject 
will  always  elicit  a  diversity  of  opinion,  the  intensity  of 
which  must  almost  of  necessity  be  increased  by  party  ele- 
ments and  considerations.  Upon  this  subject,  great  con- 
trariety and  opposition  of  opinion  must  ever  exist.  Each 
state  is  jealous  of  its  own  position  and  character,  and  will 
endeavor  to  improve  them,  if  practicable,  by  the  acquisi- 
tion or  rejection  of  new  territory,  as  the  case  may  be. 
Independent  sovereignties  are  naturally  jealous  of  their 
independence  and  sovereignty,  frequently  without  much 
regard  to  the  legal  and  proper  rights  of  other  sove- 
reignties. Between  the  several  states  of  the  American 
union,  it  has  not,  heretofore,  been  the  occasion  of  any 
serious  ultimate  difficulty,  notwithstanding  fears  well 
grounded  have  been  entertained,  that  passion  and  excite- 
ment which  has  been  exliibited  might  result  in  producing 
an  estrangement.  It  is  the  duty  and  interest  of  every 
citizen  of  every  state,  to  resist,  to  reject  jealousy,  to 
avoid  any  and  every  matter  which  may  produce  an  ex- 
cited state  of  the  public  mind.     In  the  daily  business 


THE     SCIENCE     OF     GOVERNMENT.  339 

operations  which  are  carried  on  between  individuals, 
men  frequently  act  from  impulse,  from  zeal  not  well 
balanced  or  considered.  This  produces  evil  to  the  com- 
munity, and  to  those  who  act  from  such  inducement. 
The  same  disposition  is  more  frequently  indulged  in  rela- 
tion to  public  afiairs,  than  it  is  in  connection  with  indi- 
vidual, personal  matters.  The  people,  in  their  assumed 
capacity  of  sovereigns,  are  always  conscious  and  proud  of 
their  dignity  and  power.  This  is  not  objectionable,  it  is 
commendable ;  they  should  add  deeds  to  their  knowl- 
edge answerable  ;  they  should  add  charity ;  they  should 
add  love  of  their  country  and  its  institutions. 

Many  of  the  matters  to  which  reference  has  been 
made,  as  sources  from  which  difficulty  may  result,  are 
outside,  are  violations  of  the  system ;  these  should  be 
zealously  watched  and  guarded,  suppressed  if  practicable. 

Throughout  the  entire  course  which  I  have  read  before 
this  Institute,  I  have  endeavored  to  show,  that  every 
power  has  a  limit ;  that  checks  and  balances  are  estab- 
lished in  every  possible  way,  so  far  as  compatible 
with  a  free  system,  so  far  as  they  are  or  may  be 
essential  to  the  existence  of  such  system.  These 
checks  and  balances  are  applicable  to  the  citizens  as 
individuals,  so  well  as  to  the  state  and  to  the  federal 
sovereignty.  They  are  alike  applicable  to  all  the  deposi- 
tories of  power.  I  have  endeavored  to  present  the 
science  of  government,  as  exhibited  in  the  institutions  of 
the  United  States,  as  it  is,  without  reference  to  any  party 
or  personal  predilections.  If  in  this  respect  I  have  failed, 
the  failure  is  not  the  result  of  any  wish  on  my  part  to 
flatter  or  mislead.  If  our  system  and  its  institutions 
shall  go  down,  it  will  be  from  an  excess  of  liberty,  which 
is  to  be  dreaded  and  avoided,  so  much  as  is  excess  of 
power.  The  truth  of  this  is  legibly  written  upon  all  past 
history,  which  any  and  every  man  who  reads  may  learn 


340  THE    SCIENCE     UF     GOVERNMENT. 

for  himself.  Prosperity  has  broken  and  destroyed  indi- 
viduals, over  Avhora  adversity  had  no  power ;  so  it  is  and 
so  it  may  be  with  states.  The  United  States  occupy  a 
position  which  docs  and  will  attract  the  observation  of 
other  nations.  They  have  exerted,  and  are  constantly 
exerting,  a  powerful  influence  in  favor  of  the  rights  of 
man  and  the  offices  of  humanity.  This  has  been  produced 
by  and  from  our  example,  our  moral  power ;  and  this  is 
the  power,  and  the  only  power  wdiich  can  be  usefully  or 
rightfully  employed,  unless  to  repel  foreign  aggression  or 
invasion. 

In  matters  of  scientific  research,  in  literary  produc- 
tions, in  legal  discussions,  some  few  individuals  have 
established  a  reputation  wdiich  is  acknowledged  and  ap- 
preciated by  those  engaged  in  similar  pursuits  in  other 
lands.  This  will  be  extended  and  increased  as  our  facili- 
ties shall  be  enlarged.  The  names  of  Irving,  Marshall, 
Mason,  Cooper,  Webster,  Prescott,  Story,  Sparks,  Fulton, 
Bancroft,  Bowditch,  to  which  others  might  be  added,  are 
not  unknown  to  the  learned  and  scientific  men  of  other 
countries. 

It  remains  only  to  suggest  the  remedy,  by  which  the 
supposed  dangers  which  have  been  brought  to  yonr 
notice,  and  others,  may  be  avoided.  In  presenting  this, 
I  shall  only  repeat  and  put  you  in  possession  of  the  de- 
ductions, wdiich  flow  from  the  different  subjects  discussed. 

The  dangers  to  which  reference  has  been  made,  and  all 
others  to  which  the  system  is  incident,  may  be  avoided, 
so  far  as  human  agency  or  control  is  adequate  to  such 
pm^pose.  The  system  of  government  which  .1  have  ex- 
hibited, contains  within  itself  the  remedy.  It  consists  in, 
and  depends  upon,  the  existence  of  four  distinct  facts  or 
political  elements,  which  combined  are  sufficient  to  ac- 
complish the  end  sought.  The  first  fact  or  political  ele- 
ment is,  a  division  of  sovercir/ntf/,  which  results  from  the 


THE     SCIENCE     OF     GOVERNMENT.  341 

creation  of  a  federal  or  national  jurisdiction,  for  the  ex- 
ercise of  certain  powers  ;  the  creation  of  a  state  or  local 
jurisdiction,  for  the  exercise  of  certain  other  powers.  The 
foreign  relations  of  the  country,  the  relation  which  sub- 
sists between  the  several  states  and  betw^een  the  citizens 
of  the  several  states,  cannot,  except  remotely,  be  affected 
by  extent  of  territory,  and  then  only  by  an  enlarge- 
ment beyond  its  present  extent.  These  relations  are  not 
affected  perceptibly  by  the  diverse,  or  even  adverse  local 
interests,  of  different  sections  of  the  country.  So  far  as 
these  matters  are  concerned,  the  people  of  the  United 
States  have,  and  can  have  only  one  and  the  same  interest. 
In  all  other  matters,  those  which  are  of  daily  concern- 
ment, and  in  relation  to  which  the  local  interests  of  one 
section  of  the  country  may  not  be  precisely  the  same 
wath  those  of  another,  the  several  state  governments 
come  in  and  exercise  their  power  over  small  portions  of 
territory,  in  which  the  habits  and  interests  of  the  people 
are  in  unison.  The  state  government  is  near  at  hand;  its 
operations  are  constantly  perceived  and  observed,  and 
are  controlled  by  a  small  number  of  people,  when  con- 
trasted with  the  entire  population  of  the  United  States. 
By  reason  of  this  division  or  arrangement  of  sovereignty, 
extent  of  territory,  and  diversity  of  interest,  have  no 
practical  or  objectionable  existence. 

The  second  fact  or  element  is,  the  creation  and  estab- 
lishment, in  each  of  the  sovereignties,  state  and  national, 
of  distinct  departments,  or  political  institutions,  by  the 
means  of  which  the  trusts  confided  to  these  sovereign- 
ties are  executed,  and  the  rights  of  the  citizen  sustained. 
They  are  designated  the  legislative,  the  judicial,  and  the 
executive.  These  departments  or  political  institutions 
act  as  checks  upon  each  other,  upon  the  government  as  a 
system  or  wliole,  and  upon  the  people.  The  third  fact  or 
element  is  found  in  the  existence  of  written  constitutions,  in 


342  THE    SCIENCE    OF    GOVERNMENT. 

and  by  which  the  two  sovereignties  which  constitute  our 
yystem,  and  their  several  departments,  are  controlled, 
defined,  and  limited.  These  constitutions  contain  the 
organic  and  fundamental  laws  under  which  we  live,  and 
have,  to  some  extent,  a  permanent  existence,  inasmuch  as 
they  cannot  be  amended  or  changed,  except  in  the  mode 
prescribed,  and  with  the  consent  of  a  large  proportion  of 
the  people.  This  consent  must  be  ascertained,  under  cer- 
tain modes,  prescribed  by  law,  which  are  designed  to  pre- 
vent haste  or  sudden  impulse,  and  to  afford  an  abundant 
opportunity  for  examination,  reflection,  and  the  exercise 
of  a  calm  judgment  upon  any  and  every  proposed  amend- 
ment or  change.  These  three  facts  or  political  elements 
may  be  regarded  as  the  basis  of  our  internal,  social,  and 
political  institutions  of  every  character  or  description, 
cither  state  or  national,  public  or  private.  They  have 
done  much,  and  are  competent  to  do  much,  in  the  su^Dport 
and  maintenance  of  our  system  of  government;  they 
may  become  ineffectual,  and  inadequate  to  control  some 
political  vicissitude  which  may  occur  at  some  future 
period  of  our  history  ;  they  will  become  ineffectual  and 
insufficient,  unless  they  shall  be  aided  and  be  made 
perfect  by  a  continued  and  ever  present  existence  of 
the  fourth  fjict  or  political  element,  which  is,  tJie  educa- 
tion and  intccjritij  of  the  people.  So  long  as  the  people 
of  the  United  States  shall  be  intelligent  and  educated, 
shall  maintain  inviolate  their  integrity,  shall  know 
no  north,  no  south,  their  country  and  its  destiny  will 
be  one ;  their  system  will  resist  and  repel  every  dan- 
ger, will  survive  all  and  every  cause  of  danger,  ex- 
cept such  as  may  result  from  the  imperfection  which 
ever  has  surrounded,  and  ever  must  surround  all  things 
human.  If  our  system  is  destined  to  live,  as  I  trust  it  is, 
it  must  live,  it  can  live  only  in  and  ujion  the  moral  power 


THE    SCIENCE    OF     GOVERNMENT.  343 

of  the  people ;  it  must  live,  it  can  live  only  in  a  calm, 
well  considered,  dispassionate  public  opinion.  In  the 
formation  of  this  opinion,  you,  as  well  as  your  neighbors, 
have  a  responsibility  which  you  may  not,  which  you  can- 
not shake  off  or  avoid. 


EREATA. 


Page      8,  line  28,  for  dictates  read  dictated. 

55,  "    16,   "  to  "    as. 
50,    "   24,  omit  semicolon  after  therehj. 

56,  "  25,  add  "  "  detained. 
134,  "  6,  for  controlled  read  uncontrolled. 
145,     "    26,   "  piracies      "    roUberies. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


JK 

Goodrich  - 

216 

G626s 

Science  of 
government 

JK 
216 

G625s 


iitiiiin 


